Professor Marci A. Hamilton of Cardozo School of Law assesses the upcoming public prayer case, Town of Greece v. Galloway, arguing that the evidence should stack up against the town for violating the Establishment Clause of the Constitution.
The Supreme Court will be hearing arguments this month in an important Establishment Clause case, Town of Greece v. Galloway, which poses the questions whether—and if so, how—a local government may open its public meetings with prayer. The fact of the cert grant earlier this year is interesting for doctrinal reasons, of course, but so is the question of why this Court would take such a case.
The Case of Town of Greece v. Galloway
This case is already squaring up to be a landmark battle in the ongoing culture war over control of government programs and spaces, and control of American culture generally.
Until 1999, the Town of Greece opened its Town Board meetings with a moment of silence, a practice that is unquestionably constitutional. In 1999, however, the practice changed, when the Town Supervisor, John Auberger, substituted prayer for silence. According to Auberger’s Town profile, he is a member of St. Lawrence Roman Catholic Church and the Knights of Columbus, and virtually all of the monthly “chaplains” have been Christian.
The Town and Auberger have allied themselves with the most extreme proponents of government-sponsored prayer. They have the Alliance Defense Fund representing them, and an amicus brief has been filed on their behalf by the Foundation for Moral Law. (That foundation is led by Judge Roy Moore, who belligerently violated the Establishment Clause by bringing his own two-ton granite rendition of a version of the Ten Commandments into the lobby of the Alabama Supreme Court). Other amici include the Liberty Institute and the National Legal Foundation, which advertises itself as a “Christian public interest law firm”. It is no secret that these groups are aggressively seeking to re-introduce prayer in public schools, a movement that includes many who insist that this is a “Christian country.”
The Town of Greece has moved backward, if you measure what they did in comparison to how the constitutional doctrine has developed. Once the Supreme Court held that public schools could not sponsor prayer, the alternative substituted was a moment of silence. The former was exclusionary, but the new practice sent no message to the participants that the government expected them to follow any particular creed. With the constantly expanded galaxy of beliefs in the United States, this was a salutary development for liberty and peace.
There is no indication why Supervisor Auberger decided to displace the likely constitutional moment of silence with constitutionally suspect prayer. Under Wallace v. Jaffree, a moment of silence might be constitutional, but not if it was packaged as a moment of “meditation and voluntary prayer.” In light of his own bio on the Town website, he is a believer and a Christian. We can never learn motive, but what is the purpose of displacing a moment of silence with prayer in 1999, if not to underscore a purpose of supporting, endorsing, and propagating religion? The time line in this case does not bode well for Greece.
The procedures are also suspect and fraught with the potential for the Town to impose religious content and viewpoint on its citizens. The Town of Greece solicited clergy month-by-month, by calling those religious groups (all Christian) listed in a Chamber of Commerce publication. Calls were made by a Town employee until a member of the clergy was found to open the next monthly session. Sometimes, Supervisor Auberger gave the chaplain of the month a plaque or special commendation. Again, these practices were arbitrary and unilateral.
By and large, the prayers have been delivered solely by Christian clergy, except for a blip of time that—not coincidentally—fell in the midst of the litigation where they recruited a Wiccan priestess, a Baha’i congregation leader, and a secular Jew. By the close of the record, though, they were back to a purely Christian contingent of chaplains, who frequently invoked Jesus, God, and the Holy Spirit.
This practice was challenged by Susan Galloway and Linda Stephens, who attended the public Town Board meetings. Americans United for Separation of Church and State represents Galloway and Stephens. Their claims sound in Justice Sandra Day O’Connor’s endorsement test, for Galloway and Stephens argue that the Town appeared to have aligned itself with a single religious tradition, Christianity, and that the government’s endorsement of Christianity is a violation of the separation of church and state, as that principle has been interpreted in Establishment Clause doctrine. Under existing doctrine, they are on solid ground.
First Amendment Religion Doctrine Weighs Against the Town
The facts are pretty stark here. A religious town supervisor decided that a moment of silence was not enough, and instead embroiled the town in likely litigation by recruiting chaplains to start Town Board meetings with sectarian prayers. Moreover, the vast majority of recruited chaplains over the years have shared the same faith as the supervisor. And no citizen or resident could attend the Board Meetings without being subjected to the prayers.
Under the First Amendment, it is incumbent upon the government not to endorse a single religion, and not to choose between religion and irreligion. These are well-settled principles, and they have contributed to the remarkable achievement in the United States of simultaneous expanding diversity of religious belief and a lack of religious civil wars.
The one case that might potentially cut on the side of the Town is Marsh v. Chambers. There, the Court held that opening prayers in a state legislature were constitutional, largely because of the long history of opening legislative sessions with prayer. The Court reasoned, as it had in Walz v. Tax Comm’n of City of New York, which upheld property tax exemptions for religious groups, that a practice that had been in place since the beginning of the country and had not resulted in an established church must not be a violation of the Constitution. The Court did not, however, otherwise address its Establishment Clause doctrine, which must be applied in this case, where the prayers were not initiated until 1999. In cases like Town of Greece, the Court will have to use its standard Establishment Clause doctrine, which is found in the factors listed in Lemon v. Kurtzman and later cases interpreting those factors.
On the other side, there are many Supreme Court cases addressing government support or preference for religion that spell trouble for the Town. In Allegheny County v. ACLU, the Court held that the county could not place a nativity, or crèche, scene on the Grand Staircase of the county courthouse, because it sent a message of endorsement of Christianity.
The school cases are also instructive. In Engel v. Vitale, the Court held that public schools could not deliver a prayer each day to the students. And in Stone v. Graham, public schools were not permitted to post the Ten Commandments in every classroom, where there was no secular purpose to do so.
In Lee v. Weisman, in a decision authored by Justice Kennedy, the Supreme Court held that a public school could not include a prayer at graduation, because it endorsed a religious tradition, and left students in the audience feeling as though they were not full members of the community. The same reasoning was embraced in Santa Fe Independent School Dist v. Doe, where the Court invalidated a Texas public school’s practice of having students present prayers over the public announcement system as part of the program immediately preceding football games.
Both of the latter cases, Lee and Santa Fe, highlighted the plight of the student, or citizen, who is caught at a public event, but who does not subscribe to the religious views being propagated by the government at that event. The cases convey an easily understandable principle: it is unacceptable, under the Constitution, for the government to deliver a message on behalf of a religious viewpoint, in part because it marginalizes those who don’t share the same perspective. Underlying that principle is that national citizenship entails inclusion, regardless of belief or creed. To put it another way, religious entities have the right, under the First Amendment to create insiders and outsiders within their own faith, but the government may not do the same. We are all Americans with the same government, regardless of our faith. The drive for government-sponsored prayer is a drive for division, and, therefore, a danger.
Galloway and Stephens were receiving, loud and clear, a message from the Town Supervisor and the Board that if they wanted to exercise their rights as citizens to monitor and speak to their government, then they first had to sit through the Supervisor’s decision to impose a prayer at the start of the meeting.
This Supreme Court and the Establishment Clause
Under most constitutional metrics, the U.S. Court of Appeals for the Second Circuit was correct in holding that the Town of Greece’s practice was likely unconstitutional. Normally, the Supreme Court does not take cases that pose settled questions of law. Therefore, the question that this certiorari grant raises is why this Court took it.
I hope the answer is not because the conservative members of the Court intend to be judicial activists intent on rolling back the principle of government neutrality toward religion. Most court watchers would assume that there may be four conservative members of the Court who are inclined to jettison the endorsement test, Chief Justice Roberts and Justices Scalia, Thomas, and Alito, and who would embrace the agendas of the Alliance Defense Fund, and others who are backing the Town in this case. I also hope that the fact they are all Catholic does not lead them, consciously or unconsciously, to be more sympathetic to the Town Supervisor in this case.
While even they have necessarily abandoned the notion that this is a “Christian country,” they have embraced the idea it is a monotheistic country. In other words, they have had to concede that there is meaningful diversity in America, going beyond the diversity among Christians, but they have held fast, so far, to the concept that all the “major” religions are united in worshiping a single deity.
The problem for these four conservative Justices is that we are long past the moment in history when the Court could plausibly or legitimately state, let alone hold, that this is just a “monotheistic country.” The diversity of religious belief in the United States is nearly boundless, with sects numbering in the tens of thousands, and new schisms and believers appearing daily. It is rank denial to insist that the millions of Buddhists and Hindus in the country are “monotheists,” not to mention the growing numbers of Pagan believers, and just as important for these purposes, the growing number of spiritual believers who do not embrace organized religion. We have established a spectrum and variety of religious experience that is unrivaled in history, and we have done it without raising arms against each other. “Monotheism” mischaracterizes the American religious experience, and in fact, falsifies it.
Indeed, in an era of Islamic terrorism, which exists to impose its religious viewpoint on the world and is offended by the religious liberty and diversity of the world, it is hard to explain why anyone still thinks that government control or support of a particular religion makes sense. We need individual and personal liberty, but what we also need to do is set an example for the world of why the totalitarianism at the heart of Islamic radicalism is so wrong.
Justice Kennedy, as usual now, likely will be a swing vote. He authored Lee, and labeled the constitutional violation in that case “coercion,” but his opinion read very much like the Court’s endorsement test, making it highly unlikely that he will abandon the test in substance. He took seriously in that case the reality that a captive audience attending a graduation ceremony could not be made to feel like non-citizens consistent with the First Amendment. The same principle applies to the Town resident who wants to attend the Town Board meetings to monitor governance, but not to participate in religion. There is no other venue in which to obtain the same information, and so they are trapped in a very real sense. Giving up attending the public meetings of one’s local government is too much for the government to ask of those who don’t share the religious viewpoint of the government-sponsored speaker, or any religious viewpoint at all.
I assume the four more liberal members of the Court, Justices Ginsburg, Breyer, Sotomayor, and Kagan, will be more likely to find that the endorsement test is appropriate and violated in these circumstances, and that the Establishment Clause is essential to liberty and safety. Justice Kagan did raise eyebrows when she joined Justice Alito in Hosanna-Tabor when he wrote in favor of “autonomy” for religious organizations, which is an extremist position at odds with the ordered liberty imposed by the First Amendment doctrine from the beginning. But that decision and concurrence is so far removed from this case, that vote reveals little.
What is at stake in Town of Greece is our self-image of ourselves as a collective. Those in favor of permitting local governments to open their public meetings with predominantly Christian messages have myopia or a sort of body image disorder. They simply are not seeing what is in front of them. If the Justices accept the actual diversity of the United States and the need of government in these difficult times to eschew taking sides on faith, the holding in this case will be inevitable: the Town of Greece has violated the Establishment Clause.
Editor’s Note: An earlier version of this article appeared on Verdict, the blog of Justia.com.
Marci A. Hamilton is a professor of law at Cardozo School of Law, and the author of Justice Denied: What America Must Do to Protect Its Children, which was just published in paperback with a new preface.
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