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Tough Fight to End Legislative Prayer

The National Law Journal
November 4, 2013

Foror the first time in 30 years, the U.S. Supreme Court will revisit the practice common to many legislative bodies of commencing their sessions with prayer.

In 1983, the justices in Marsh v. Chambers rejected an Establishment Clause challenge to this ritual even though the same Presbyterian minister, paid out of public funds, had given invocations “in the Judeo-Christian tradition” for 16 years.

Chief Justice Warren Burger’s opinion rested on the “unbroken history,” since the time of the Founding Fathers, of the usage’s acceptance. This record, according to the court, made such prayer “a tolerable acknowledgment of beliefs widely held” in American society—a reasonable accommodation to, not an establishment of, religion.

Yet reliance on majoritarian sentiment stands in some tension with the concern for individual and minority beliefs at the core of both the religion clauses. That tension has surfaced once again with the grant of certiorari in Town of Greece v. Galloway, scheduled for argument on Nov. 6.

In a highly fact-specific opinion by Judge Guido Calabresi, the U.S. Court of Appeals for the Second Circuit determined that in the totality of the circumstances, prayers opening town meetings in Greece, N.Y., had the unconstitutional effect of affiliating government with a specific religious viewpoint. Among other things, Greece’s supposedly random selection of volunteer speakers had resulted, virtually exclusively, in a pool of Christian clergymen.

Furthermore, most of the invocations contained uniquely sectarian references—a factor that the court did not, however, regard as conclusive. In addition, by often requesting audience participation and by using the first-person plural “we,” the prayer-givers conveyed the impression of representing the community at large. Indeed, members of the town board would bow their heads, say “Amen,” or cross themselves.

While stressing the narrowness of the decision (“We emphasize what we do not hold”), Calabresi noted that the problems of avoiding a forbidden appearance of establishment “might well prompt municipalities to pause and think carefully before adopting legislative prayer.” This concession likely served as a red flag to would-be defenders of Marsh on the court.

According to the town in the Greece case, the court below erred in employing the “endorsement” test, a standard clarified by Justice Sandra Day O’Connor in Lynch v. Donnelly. The town argues that Marshcontrols and calls for reversal—especially since the speakers here, unlike in Marsh, were a cadre of unpaid volunteers rather than a single, long-tenured and remunerated chaplain.

Moreover, the town reads Marsh as sanctioning all legislative prayer, sectarian or not, as long as government does not discriminate in its selection of prayer-givers or (quoting Marsh) “exploit [the occasion] to proselytize or advance any one, or ... disparage any other, faith or belief.”

Yet, more broadly angling for Justice Anthony Kennedy’s crucial vote, the town urges abandonment of the endorsement test in favor of a ban only on coercion to support or take part in religious activity or on direct benefits to religion so extensive as in fact to establish a religious faith; neither, it contends, occurred in this case.

Going beyond Calabresi, who had declined to find coercion or to impose an outright ban on sectarian speech, the respondents in the case claim that the record reveals “two independent but mutually reinforcing reasons” to uphold the court below – both of which distinguish Marsh. (Taking a principled if doomed position, an ACLU amicus brief frontally calls for Marsh to be scuttled.)

For one thing, rather than being anonymous observers of the legislative process, many people at the sparsely attended town meetings appear as applicants (for instance, to obtain rezoning permits) or to be honored or sworn into office; their presence “is not voluntary in any meaningful sense.” In this setting, religious minorities and the nonreligious have no real choice but to hide their dissent, or run the risk of incurring disapproval or even tangible negative consequences.

Also, whereas the Marsh prayers were characterized as “non-sectarian,” those in Town of Greece often explicitly mentioned Jesus Christ. Thus, even under petitioner’s approach they improperly advanced a particular faith.

Each painting the other as extreme, the parties’ briefs offer Rashomon views of both the facts and the applicable law. Two things, though, are perfectly plain. First, however one parses Marsh, its existence poses a daunting barrier in the way of the respondents: the anti-establishment advocate’s path never did run smooth. Second, issues of religious observance will continue to be divisive—in the court as well as society in general.