How will the court resolve the “problem” of sectarian legislative prayer?

Scott W. Gaylord from Elon University argues that there are four reasons why the Supreme Court will rule in favor of the Town of Greece in next year’s big public prayer decision.

Continental_Congress_prayer

Prayer at the First Continental Congress

On November 6, 2013, the United States Supreme Court heard oral argument in Town of Greece v. Galloway, a Second Circuit case considering the constitutionality of faith-specific legislative prayer.  The central question is, as Justice Kagan noted, whether references to Jesus Christ and other religion-specific deities “will be allowed in a public town session.”  As the oral argument demonstrated, the question is not an easy one.  Sectarian legislative prayer sits uncomfortably at the intersection of the Court’s opinions in Marsh v. Chambers and Allegheny County v. ACLU.  Applying these decisions, four Circuits—the Second (Greece), Fourth (Joyner), Ninth (City of Lancaster), and Eleventh (Pelphrey)—have reached at least three different conclusions regarding the constitutionality of religion-specific legislative prayers, perhaps informing Justice Kagan’s view that “every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”

Given Marsh and Allegheny, though, the Court already is “involved” in the legislative prayer debate and now must resolve the “problem” created by its prior decisions.  In Marsh, the Court upheld the prayer practice of the Nebraska legislature based in part on past practice: “[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.”  Marsh v. Chambers, 463 U.S. 783, 786 (1983).  This longstanding history illuminated “what the draftsmen intended the Establishment Clause to mean” as well as “how they thought that clause applied to the practice authorized by the First Congress.”  Id. at 790.  Under Marsh, legislative prayer generally is constitutional.  To determine whether a particular legislative prayer policy violates the Constitution, courts must look at the context in which the prayers are given, not the content of the prayers: “The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”  Id. at 794-95.  Because there was no indication that the Nebraska legislature had exploited the prayer opportunity (even though the same Presbyterian minister gave invocations for 16 years that frequently were explicitly Christian), the Court refused “to embark on a sensitive evaluation or to parse the content of a particular prayer.”  Id. at 795.

In Allegheny, the majority sought to limit the holding in Marsh to nonsectarian prayers: “[t]he legislative prayers involved in Marsh did not violate [the Establishment Clause] because the particular chaplain had ‘removed all references to Christ.’”  County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 603 (1989) (quoting Marsh 463 U.S. at 793 n.14).  Under Allegheny’s interpretation of Marsh, sectarian prayers are unconstitutional because they fall outside the narrow history and tradition upon which Marsh relied: “not even the ‘unique history’ of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief.”  Id.

The Allegheny majority’s “effect of affiliating” test, however, is simply a reincarnation of the “expressly linking” test that Justice Brennan advanced in his Marsh dissent.  See Marsh, 463 U.S. at 798 (Brennan, J., dissenting) (“More importantly, invocations in Nebraska’s legislative halls explicitly link religious belief and observance to the power and prestige of the State.”).  Both tests are derived from the second prong of Lemon, which required that the primary effect of the government action neither advance nor inhibit religion.  But the majority in Marsh did not even mention Lemon, let alone apply Justice Brennan’s test.  Instead of looking at whether prayers affiliate or link the government with religion, “Marsh stands for the proposition, not that specific practices common in 1791 are an exception to the otherwise broad sweep of the Establishment Clause, but rather that the meaning of the Clause is to be determined by reference to historical practices and understandings.”  Allegheny, 492 U.S. at 670 (Kennedy, J., concurring and dissenting).  Moreover, whereas Allegheny focuses on the content of the prayers (whether the invocations reference specific deities), Marsh instructs courts to consider the context in which the prayers are given (whether the government exploited the prayer opportunity to proselytize or disparage).

Although the Court might resolve the tension between Marsh and Allegheny in various ways, based on the oral argument and the Court’s school prayer decisions, there are four reasons why the Court likely will retain Marsh and uphold the Town’s prayer policy.  First, there was no serious discussion about overturning Marsh.  A majority of the Court appeared to accept that federal, state, and local legislatures could start their sessions with prayer.  Justice Scalia contended that “[p]eople who have religious beliefs ought to be able to invoke the deity when they are acting as citizens and not as judges.”  That the prayers in Greece occurred at a local town meeting (which was separate in time from the public hearing at which citizens petition the Town Board relating to zoning, business, tax, and other matters) did not change the analysis for Justice Kennedy: “In a way it sounds elitist to say, well, now we can do this in Washington and Sacramento and Austin, Texas, but you people up there in Greece can’t do that.”  Even Justice Breyer, who spent much of the oral argument searching for a compromise position, acknowledged that, although one solution to “the problem of prayer in these kinds of legislative sessions” might be to prohibit such prayers altogether, “that is not our tradition.”

Not surprisingly, because a majority seems to approve of legislative prayer, much of the discussion focused on whether government officials could censor prayers or mandate adherence to a non-denominational civic religion.  Justice Kennedy decried having legislative bodies or the courts determine whether prayers were appropriate because that would “involve the state very heavily in the censorship and the approval and non-approval of prayer.”  Similarly, Chief Justice Roberts worried about “[w]ho is supposed to make these determinations” as to which prayers are or are not acceptable and whether “prayers have to be reviewed for [government] approval in advance.”

These concerns are not novel and are reflected in the Court’s school prayer cases.  Writing for the Court in Lee v. Weisman, Justice Kennedy stated that “[t]he suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted.”  505 U.S. 577, 590 (1992).  Likewise, in Engel v. Vitale, the Court instructed that “it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”  370 U.S. 421, 425 (1962); id. at 429 (“[O]ne of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.”).  Thus, given Lee and Engel, the Court is unlikely to mandate nonsectarian prayer at legislative meetings.

Second, several Justices worried that the distinction between sectarian and nonsectarian prayer is inchoate.  Justice Alito repeatedly asked respondents’ counsel for an example of a prayer that would be acceptable to people of all faiths.  Professor Laycock suggested that “prayers to the Almighty” and “prayers to the Creator” would be acceptable.  But Justices Alito and Scalia remained unconvinced, suggesting that any reference to a single deity would exclude some religious individuals (polytheists, Buddhists, and even “devil worshippers”) as well as all nonreligious persons.  If all prayer (sectarian and nonsectarian) excludes some people yet some prayers are constitutional, then (as Marsh notes) the content of the prayers—their faith-specific or generic nature—cannot be the dispositive consideration under the Establishment Clause.

In his Allegheny dissent, Justice Kennedy makes the same point, rejecting the majority’s claim that the “legislative prayer in Marsh v. Chambers is to be distinguished from these [crèche] cases on the ground that legislative prayer is nonsectarian, while crèches and menorahs are not.”  492 U.S. at 665 n.4 (Kennedy, J., concurring and dissenting).  Because Allegheny’s “effect of affiliating” test mandates “no official preference even for religion over nonreligion,” 492 U.S. at 605, all prayer—faith-specific and generic, sectarian and nonsectarian—improperly affiliates the government with religion (which is why Justice Brennan would have struck down Nebraska’s prayer policy in Marsh).  Yet as Marsh explains, legislative prayer violates the Establishment Clause only if the government exploits the prayer opportunity to proselytize or advance religion, not simply because the prayers contain faith-specific references.  See Van Orden v. Perry, 545 U.S. 677, 688 n.8 (2005) (plurality) (“In Marsh, the prayers were often explicitly Christian, but the chaplain removed all references to Christ the year after the suit was filed.”).

Third, although Justice Sotomayor appeared sympathetic to the respondents’ claim of coercion (“You think any of those people wouldn’t feel coerced to stand?”), a majority of the Court is unlikely to find coercion under the facts in Greece.  As Marsh notes, adults are not as susceptible to coercion: “Here, the individual claiming injury by the practice is an adult, presumably not readily susceptible to ‘religious indoctrination,’ or peer pressure.”  Marsh, 463 U.S. at 792 (internal citations omitted).  In Lee, the Court acknowledged that “there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”  505 U.S. at 592.  Outside the school context, though, Lee recognized that “sometimes to endure social isolation or even anger may be the price of conscience or nonconformity.”  Id. at 597-98.  Consequently, absent additional evidence that the Town exploited the prayer opportunity, the Court will not find that there was coercion (psychological or otherwise) to participate in the opening invocations.

Finally, the Court is apt to reject the Second Circuit’s “effect of affiliating” test because it does not provide any meaningful guidance to legislative bodies or the courts.  According to the Second Circuit, the effect of affiliating test “def[ies] exact legal formulas,” which is why the court did “not aim to specify what the Establishment Clause allows” ex ante but could only say why the Town of Greece “conveyed a religious affiliation” ex post.  681 F.3d at 30, 33.  Presumably, this uncertainty is one reason why respondents’ counsel championed the Fourth Circuit’s position—that only nonsectarian prayers are permissible under Marsh and Allegheny.  See, e.g., Joyner v. Forsyth County, 653 F.3d 341, 348 (2011) (“Our cases have hewed to this [Allegheny] approach, approving legislative prayer only when it is nonsectarian in both policy and practice.”).  As discussed above, however, the Court appears unwilling to mandate generic prayer because government officials would have to censor the prayers and, in the process, promote a watered down civic religion.  Consequently, the Court is unlikely to adopt the standards espoused by the Second and Fourth Circuits (the only two circuit courts to strike down faith-specific legislative prayer).

Whether the Court will use this case to revisit the endorsement test remains unclear from the oral argument.  Although several Justices previously have expressed their dislike of the reasonable observer test, the Court may rule narrowly, affirming Marsh and holding only that the Town did not exploit the prayer opportunity to proselytize of advance religion.  Alternatively, five Justices may adopt the Establishment Clause standard that Justice Kennedy (joined by Chief Justice Rehnquist and Justices White and Scalia) set out in Allegheny: “government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact ‘establishes a [state] religion or religious faith, or tends to do so.’”  Id. at 659 (Kennedy, J., concurring and dissenting).  This coercion test would mark a significant change in the Court’s Establishment Clause jurisprudence, permitting the prayers in Marsh and Greece as well as other religious expression (such as the crèche in Allegheny) that fall “within the tradition of government accommodation and acknowledgment of religion that has marked our history from the beginning.”  492 U.S. at 663 (Kennedy, J., concurring and dissenting).

What the Court will not do is accept the respondents’ claim that faith-specific prayer is, ipso facto, inconsistent with our religiously diverse society.  As Marsh reminds us, the “problems posed by a pluralistic society” were considered at the time of the founding.  463 U.S. at 791.  John Jay and John Rutledge voiced concerns about beginning the first session of the Continental Congress with prayer because the delegates were “so divided in religious sentiments … that [they] could not join in the same act of worship.”  Id.  Yet the first Continental Congress did start with prayer.  Similarly, in Marsh, the Court dismissed such concerns because there was no evidence that the legislative body had exploited the prayer opportunity “to proselytize or advance any one, or to disparage any other, faith or belief.”  463 U.S. at 794.  The oral argument in Greece suggests that the Court will follow Marsh, adopting the view of Samuel Adams (who said that “he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the same time a friend to his country,” id. at 792) and upholding faith-specific legislative prayer unless there is evidence that the government exploited the prayer opportunity to proselytize or advance religion.

As Marsh reminds us, this result is consistent with our nation’s history and, more importantly, with the meaning of the Establishment Clause: “From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”  Id. at 786.  The Court, therefore, should uphold the Town’s prayer practice, permitting local governments to continue participating in a longstanding tradition that is “part of the fabric of our society.”  Id. at 792.

Scott Gaylord is Jennings Professor and Emerging Scholar, Associate Professor of Law, at Elon University. He will be writing amicus briefs for cases in the Third, Sixth, Seventh and Tenth Circuits of the United States Court of Appeals challenging Obamacare’s contraception mandates.

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