town of greece v. Galloway:

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1 town of greece v. Galloway: What s at Stake? Travis Wussow and Andrew T. Walker Issue Analysis what this case is about In the Town of Greece, New York, the town board held monthly meetings to conduct city business. The board opened these meetings with a prayer given by a rotating resident of the town. A majority of the time, the prayers were offered by Christian pastors, although in a few instances members of other faith traditions offered the invocation (a Jewish man, a Baha i leader, and a Wiccan). The challengers to the Town s practice argue that this practice amounts to an establishment of religion by the government. Because members of the public that are required to be at the board meeting for city business like zoning issues, they argue, the public is forced to pray. Ultimately, this case is about whether a prayer offered before a governmental meeting of any kind is constitutional. This particular case is about a town board meeting, but prayers are offered every day as Congress, state legislatures, state and federal courthouses, city councils, and school boards open for business. Praying to God for wisdom, guidance, and Providence as the legislature opens for business has been a part of America s tradition since the days of the Founding Fathers. If the challengers to the Town of Greece s practice win in this case, it could mean the end of prayer in these situations, including the Presidential Inauguration. strategic considerations The Town of Greece case will likely become an important case in the Supreme Court s interpretation of the Establishment Clause, particularly as it relates to public prayer before legislative meetings. If the Court decides to strike down the Town of Greece s practice, it is difficult to see how any legislative prayer, including an invocation given before the Presidential Inaugural Address, could survive over the long term. Christians over 40 will see the importance of this case. They have seen over the course of their lifetimes a diminishing role of faith in the public square. Younger Christians, and particularly Millennials are much less likely to be concerned about legislative prayer. Millennials are far more likely than any other generation to support the Supreme Court s ruling that mandatory recitation of the Lord s Prayer or Bible verses in public schools is unconstitutional. This is not precisely the issue in the Town of Greece case, particularly because Town of Greece does not involve the same element of perceived coercion. However, the data below can provide a loose proxy for how Millennials view this case.

2 It is therefore critical to articulate why this case matters in terms that are relevant to younger generations who are more likely to see this issue as an echo of the culture wars of a bygone era. Legislative prayer serves the purpose of reminding us that the government is not a faceless, monolithic institution: it is made up of people with diverse perspectives and diverse religious viewpoints. And indeed, if American culture continues to grow more hostile toward the beliefs held by evangelical Christians, the freedom for legislators and other public officials to express their religious beliefs openly will be a great comfort to what may become a Christian minority. At the same time, Christians must recognize that freedom to express religious viewpoints in the public square is just that: freedom. The days when it seemed possible to ensure that all religious speech in the public square reflected orthodox Christianity are becoming history. If Christians are to preserve our own rights to express our religious views in the public square, we must just as zealously defend the rights of members of other faiths to defend their religious views, even if they are different from our own.

3 legal background The Religion Clauses The U.S. Constitution contains two important clauses relating to religion, the Establishment Clause and the Free Exercise Clause. Together, these clauses are referred to as the Religion Clauses. They are both contained in the First Amendment. The text of the First Amendment is as follows: Congress shall make no law respecting an establishment of religion [the Establishment Clause], or prohibiting the free exercise thereof [the Free Exercise Clause]; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The principles protected by these two clauses are, when taken to their extremes, in some ways at odds with each other. On the one hand, the government may make no law that establishes religion. On the other hand, the government is absolutely prohibited from restricting the free exercise of religion. The point at which a law that protects the free exercise of religion becomes an establishment of religion is unclear. The Court has stated: The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other. 1 As a result, the Supreme Court s cases on the Religion Clauses suffer from considerable internal inconsistency, because the Court has struggled to apply these two competing principles to individual situations. 2 Indeed, the Court at times has appeared to resist developing clear rules, arguing that there is a broad gray area within which reasonable people may disagree. The following quote from the Court s opinion in Walz v. Tax Commission of City of New York is a particularly striking example: The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts, there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. Each value judgment under the Religion Clauses must therefore turn on whether particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so. Adherence to the policy of neutrality that derives from an accommodation of the Establishment and Free Exercise Clauses has prevented the kind of involvement that would tip the balance toward government control of churches or governmental restraint on religious practice. i Marsh and Allegheny The Supreme Court in this case will likely cite two prior Supreme Court precedents, Marsh v. Chambers ii and Allegheny v. ACLU Greater Pittsburgh Chapter. iii 1 Walz v. Tax Comm n of City of New York, 397 U. S. 664, at (1970). 2 Ibid.

4 In Marsh v. Chambers, the Court addressed the question of whether a legislature can pay a chaplain to provide a prayer before the start of a legislative session. The Nebraska Legislature had hired and paid a Presbyterian pastor for 16 years to provide the daily invocation, and a member of the Nebraska legislature sued, arguing that this practice amounted to the establishment of a religion by the state of Nebraska. The Supreme Court upheld the Nebraska legislature s practice, because legislatures have hired and paid chaplains for over 200 years, since before the First Amendment was drafted and adopted by the First Congress. The Court arrived at this decision even though only one denomination of only one faith had been represented for 16 years, the fact that the legislative chaplain was paid out of public funds, and the fact that the prayers were in the Judeo- Christian tradition. Allegheny v. ACLU Greater Pittsburgh Chapter involved a nativity display at the main staircase of the county courthouse and a display of a Hanukkah menorah in the center of town. In Allegheny, a fragmented Supreme Court issued a complex decision ultimately deciding that the nativity display was unconstitutional, holding that it was a specific, sectarian display of religion. A slightly different majority of the Court held that the message of the menorah, on the other hand, was not exclusively religious. Rather, the menorah was a visual symbol for a holiday that has both religious and secular dimensions. The Supreme Court s decisions on prayer and religion in the public square are complex and in some cases seem to be contradictory. Some legal experts speculate that the Court has chosen to decide the Town of Greece case in order to clarify the Court s position on these issues. In the end, however, we won t know what the Court has in mind until the final opinion is issued. Justice Kennedy s Coercion Test Some scholars have speculated that the conservative members of the Court joined by Justice Kennedy decided to review the Town of Greece decision in order to rework or substantially overhaul the Establishment Clause jurisprudence. Examining the briefs from both sides in this case, it appears that both sides have been appealing to Justice Kennedy, assuming that he will be the deciding vote in this case. The briefs from both sides focused on the question of whether citizens of the town were forced to participate in the prayer. It is therefore worth considering the legal framework he is likely to use in analyzing this case. In Lemon v. Kurtzman, the Supreme Court laid out three tests to be used when determining whether a government practice violates the Establishment Clause. Under the Lemon test, where a government practice involves religion in some way, the practice must (1) have a secular purpose; (2) neither advance nor inhibit religion; (3) and must not foster an excessive entanglement with religion. iv The Lemon test, however, proved to be a difficult test to apply in practice, and starting with Engel v. Vitale, v the court began to examine the question of whether the governmental practice has the purpose or effect of endorsing religion. The hallmark of the endorsement test is whether the government takes a position on questions of religious belief or makes

5 adherence to a religion relevant in any way to a person s standing in the political community. vi Stated differently, the endorsement test asks whether a reasonable observer would feel like an outsider in the political community because of the government action. vii It is fundamentally a fact-based question that requires the court to examine the specific facts surrounding the context and content of the government action. Justice O Connor more fully articulated the endorsement test in a concurring opinion in the Lynch v. Donnelly decision, which evaluated the constitutionality of a Christmas tree on town property. viii But Justice O Connor s endorsement test did not become Supreme Court precedent until Allegheny, when a majority of the Supreme Court adopted Justice O Connor s reasoning laid out in her concurring opinion. ix In Allegheny, Justice Kennedy strongly criticized the majority s reasoning and O Connor s endorsement test in a concurring opinion. x Justice Kennedy has called the endorsement test a jurisprudence of minutiae that threatens to trivialize constitutional adjudication because the test requires the examination of nonreligious objects or practices that may be connected to the governmental activity. xi Instead, Justice Kennedy has offered an alternative to the endorsement test with the coercion test. Under this test, the government may not coerce anyone to support or participate in any religion or its exercise. xii The touchstone is whether the government is forcing a citizen to participate in a religious activity. This test has a number of advantages. Take, for instance, tax exemptions for churches: This governmental practice easily passes the coercion test because these tax exemptions force no one to participate in religion in any way. It is a predictable and straightforward analysis. However, applying the endorsement test requires a much more complex analysis, requiring courts to consider whether a tax exemption constitutes taking a position on religious belief and how a reasonable observer may feel about the tax exemption. On the endorsement test, Justice Kennedy stated in his Allegheny dissent, referring to the Allegheny majority s decision: The notion that cases arising under the Establishment Clause should be decided by an inquiry into whether a reasonable observer may fairly understand government action to send a message to nonadherents that they are outsiders, not full members of the political community, is a recent, and in my view most unwelcome, addition to our tangled Establishment Clause jurisprudence. xiii considerations concerning religion and the public square While the debate in this case is legal in nature, this case is a part of a larger issue, that is, the tension about the role that religion plays in the public square.

6 The plaintiffs in Town of Greece, those arguing that prayer before municipal meetings represents an establishment of religion, are a good example of those advocating for a secular public square, one in which appeals to the divine or sacred are off limits. If the plaintiffs were to win in this case, prayer will be removed from yet another area of public life. But in this case, there would be subtler and more serious consequences if the plaintiffs win: If the Supreme Court sides with the plaintiffs, the Court will signal the state s ability to prevent its citizenry from expressing its ultimate understanding of reality. A victory for the plaintiffs in this case would be an invitation for the government to play an even larger role in its citizens lives. In a very real way, this case will determine the future as to whether an individual will have to subjugate his or her deeply held beliefs to the whims of a secular state before he or she can enter civic life. The best path forward for the United States is neither secularism nor theocracy, but a healthy, civic pluralism that recognizes and respects the diversity of viewpoints and beliefs in our society. ERLC President Russell Moore has commented on the significance of the Greece case, particularly about its opportunity to serve as an opportunity to think about why our pluralistic society is better off with uncensored, unscripted public prayers. 3 He continues, Conservative evangelicals don t want government support for our faith, because we believe God created all consciences free and a state-coerced act of worship isn t acceptable to God. Moreover, we believe the gospel isn t in need of state endorsement or assistance. Wall Street may need government bailouts but the Damascus Road never does. [ ] A prayer, by definition, isn t a speech made to a public audience but is instead a petition made to a higher Being. For the government to censor such prayers is to turn the government into a theological referee, and would, in fact, establish a state religion: a state religion of generic American civil religious mush that assumes all religions are ultimately the same anyway. To remove the sectarian nature of prayer is to reduce such prayers to the level of public service announcements followed by Amen. Evangelicals pray in Jesus name not because we are seeking to offend our neighbors, but because we re convinced that through Jesus is the only way we have access to God. We can t do otherwise. Likewise, a Muslim shouldn t be expected to speak of God as Father, Son, and Holy Spirit because one who could do so isn t a Muslim at all. When we allow evangelicals to pray as evangelicals, Catholics to pray as Catholics, Muslims to pray as Muslims, Jews to pray as Jews, we are not undermining political pluralism in our democracy, we re upholding it. 3 Russell D. Moore, Why Public Prayer Is About More Than Culture Wars, Huffington Post, October 15, 2013,

7 That s why these prayers are not an establishment of religion. The clergyperson offering the invocation isn t an extension of the government. His or her prayers aren t state-written or state-approved. If this is the case, why even bother with invocations, from multiple religious voices, in an increasingly diverse American public square? Such invocations serve to remind us that we are more than extensions of the state. Our consciences are accountable to a higher tribunal than any government. It s that sense of conscience and human integrity that has led this country to support minority rights, respect for opposing viewpoints, and a limit on the power of government. 4 how should christians respond? We should pray for the Supreme Court. Before you get on Facebook to write a post or Twitter to fire off a quick thought, remember that this is a case about prayer. Before you do anything else, pray for our leaders and for their decision on this case. Our s, Facebook posts, and tweets will not change the outcome of this case. But our prayers can. We should spread the word about this case, asking your friends to pray. Many of our friends have never heard of this case and have never considered the importance of this case. We should inform them and encourage them to pray for wisdom for the Supreme Court. We should praise God that the White House supports the Town of Greece in this case. The Obama Administration, thankfully, has sided with the Town of Greece in this case, and the United States Solicitor General has submitted a friend of the Court brief to put forward its argument. We should thank God for moving within the Obama Administration. points for consideration What makes America great is our ability to accept our differences, even when those differences are expressed in the public square. When we allow evangelicals to pray as evangelicals, Catholics to pray as Catholics, Muslims to pray as Muslims, Jews to pray as Jews, we are not undermining political pluralism in our democracy, we re upholding it. The Supreme Court is being asked to set new precedent which might mean an end to all prayers before legislative meetings. If the Court overturns its prior precedent, it would be imposing new limits on prayer in the public square. This new opinion would very likely lead to other limitations on prayer and religious speech. This new precedent would create a country far different from the one our Founding Fathers imagined when drafting the First Amendment. Prayer before legislative meetings reminds us that the government is made up of individuals that hold diverse viewpoints on God and life. The government is made up of human beings. Legislative prayer reminds us of this when the prayer comes from any perspective: Jewish, Muslim, Hindu, Buddhist, Agnostic, Atheistic, Christian, or any other sincerely held religious viewpoint. 4 Ibid.

8 This case matters because prayer matters. Prayer before a legislative meeting is not symbolic: It is communication with a personal God who brings Himself close to us, so close that He hears our prayers. As believers, we should want prayer to be allowed before legislative meetings because God hears our prayers. Our prayers matter. Jesus tells us in the Sermon on the Mount: Ask, and it will be given to you; seek, and you will find; knock, and it will be opened to you. For everyone who asks receives, and the one who seeks finds, and to the one who knocks it will be opened. Or which one of you, if his son asks him for bread, will give him a stone? Or if he asks for a fish, will give him a serpent? If you then, who are evil, know how to give good gifts to your children, how much more will your Father who is in heaven give good things to those who ask him! Matthew 7 11 ESV. The church must embrace the fact that America is a pluralistic society that is becoming more pluralistic every day. Accordingly, if we fight for the right to pray before legislative meetings, we do so with the knowledge that we may not always agree with this prayer. As Christians, we embrace this fact, as it provides us with opportunities to bring and share the gospel. As Christians, we support not oppose separation of church and state. This case would create a state-created orthodoxy, requiring all prayer and religious speech to meet a judicially enforced standard of neutrality. But we know that any prayer, any religious speech, inherently has a non-neutral perspective. What makes this country great is our ability to accept and embrace our differences. The harm that would be caused by striking down the Town of Greece s practice would be much greater than any harm involved with allowing it. Nothing in the Town of Greece s practice forces religion or prayer on anyone. On the other hand, the challengers analysis would construct a state-created orthodoxy of neutrality, forcing those with sincerely held religious beliefs to conform their religious speech to this new orthodoxy. All religious adherents have sincerely held beliefs that dictate the way that they pray. Many Muslims believe they must pray in the name of Allah; many Christians believe they must offer their prayers to Jesus Christ. However, under the challengers arguments, neither category of believers would be permitted to do so contrary to their religious beliefs since neither prayers are neutral and nonsectarian. The Court is standing on the edge of a slippery slope. If the Court overturns its prior precedent and creates new limits on prayer before legislative meetings, this case could become the basis for ending all legislative prayer in the country. If the Supreme Court strikes down the Town of Greece s practice, it is difficult to imagine any legislative prayer scenario that would survive for long. This would be an unusual result, particularly since the practice of legislative prayer dates back to the days when the Establishment Clause itself was drafted by the First Congress.

9 for further reading Lyle Denniston, Argument preview: Prayer s role in government, SCOTUSBLOG (Nov. 3, 2013, 12:03 AM), Ken Klukowski, Symposium: Time to restore longstanding meaning and sanity to the Establishment Clause in Town of Greece v. Galloway, SCOTUSblog (Oct. 3, 2013, 3:39 PM), Jessie Hill, Town of Greece v. Galloway: What is the Supreme Court up to?, SCOTUSBLOG (Sep. 30, 2013, 10:55 AM), Steven Smith, Town of Greece v. Galloway symposium: The end of no endorsement?, SCOTUSBLOG (Oct. 2, 2013, 10:37 AM), Bill Mears, Atheist to Get Her Day in Court, CNN BELIEF BLOG (Nov. 1, 2013, 4:39 PM), Editorial, A Prayer in the Town Hall, N.Y. TIMES, November 3, 2013, available at

10 notes i Walz v. Tax Comm n of City of New York, 397 U. S. 664, at (1970). ii Marsh v. Chambers, 463 U.S. 783 (1983). iii Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989). iv Allegheny v. ACLU, Greater Pittsburg Chapter, 492 U.S. 573, 592 (1989) (citing Lemon v. Kurtzman, 403 U.S. 602, at (1971)). v 371 U.S. 421, 436 (1962) vi Allegheny, 492 U.S. at (quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O Connor, J., concurring)). vii See Steven Goldberg, Beyond Coercion: Justice Kennedy s Aversion to Animus, 8 U. PA. J. CONST. L. 801, 801 (2006). viii Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O Connor, J, concurring). ix Allegheny, 492 U.S. at x Allegheny, 492 U.S. at 668. Justice Kennedy stated as follows: The majority invalidates display of the crèche, not because it disagrees with the interpretation of Lynch applied above, but because it chooses to discard the reasoning of the Lynch majority opinion in favor of Justice O Connor s concurring opinion in that case. It has never been my understanding that a concurring opinion suggest[ing] a clarification of our... doctrine, could take precedence over an opinion joined in its entirety by five Members of the Court. As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governin rules of law. Since the majority does not state its intent to overrule Lynch, I find its refusal to apply the reasoning of that decision quite confusing. Id. (citations and footnotes omitted). xi Allegheny, 492 U.S. at 674 (Kennedy, J., concurring in part and dissenting in part). xii Allegheny, 492 U.S. at 659 (Kennedy, J., concurring in part and dissenting in part). xiii Allegheny, 492 U.S. at 668 (citations omitted). Travis Wussow is an executive pastor and lawyer, working toward mercy, justice, and living humbly. Travis, his wife Katie, and his two daughters Maggie and Jane live in urban Austin where they seek to renew their neighborhood in a just and merciful way. Travis received a B.B.A. in Finance from The University of Texas at Austin and a J.D. from The University of Texas School of Law. Andrew T. Walker serves as the Director of Policy Studies at The Ethics and Religious Liberty Commission