Supreme Court Upholds Legislative Prayer at Local Government Level

Whether the prayer activity at issue in Town of Greecewould also pass muster under the California Constitution remains an open question. For cities, counties and special districts best practices to avoid the perception of ‘coercion’ are advised.

A majority of the Supreme Court has upheld the right of local governments to open their meetings with prayer so long as the practice over time does not proselytize or advance any one faith or disparage another. In Town of Greece v. Galloway, the Court found that prayers at the opening of legislative sessions lend gravity to the occasion and reflect values that have long been part of the country’s heritage, and that it would be inappropriate for government to act as supervisors or censors of the content of such prayers.

Background

The Town of Greece, New York had been inviting local clergy to offer an opening prayer at Town Board meetings since 1999. The Town did not edit or prescribe the content of the prayers. The Town contacted local religious organizations named in a guide published by the Chamber of Commerce and created a list of chaplains willing to perform the task. Each month a Town employee would go down the list until he or she found someone available. Until 2008, without exception, all were of the Christian faith. After the Board began receiving complaints, however, several clergy from non-Christian denominations were added to the City’s list and a Wiccan priestess, Baha’i chairman, and lay Jewish man provided invocations for a period of time before the practice returned to only speakers of the Christian faith.

Susan Galloway and Linda Stephens attended these Board meetings to speak about issues of local concern and believed the Town’s practice violated their religious and philosophical views.  The U.S. Court of Appeals for the Second Circuit agreed, finding that the Board’s policy, while not reflective of any animosity towards a type of religion, nonetheless reflected an endorsement of a particular religious viewpoint because of the totality of the circumstances. Those circumstances included the failure of the Town to originally reach outside its borders to find speakers of alternative faiths, the strong Christian content of many of the prayers, and the overt acts by the Board, such as asking audience members to stand or bow their heads.

In reversing the Court of Appeals, the Supreme Court relied heavily on its prior opinion in Marsh v. Chambers, 463 U.S. 783 (1983), in which it upheld the right of the Nebraska state legislature to open each session with a prayer by a Presbyterian minister paid with public funds.  In Marsh, Chief Justice Warren Burger wrote that the practice did not violate the First Amendment’s Establishment Clause given legislative invocations had been an “unbroken practice for two centuries in the National Congress and for more than a century in Nebraska and in many other states.” Applying the same logic in Town of Greece, a 5-4 majority of the Court found that the Town’s practice fit within the tradition followed by Congress and at the state level.

Writing for the majority, Justice Anthony Kennedy specifically rejected the contention that prayer must be nonsectarian or not identifiable with any one religion.  The majority noted that Congress itself, shortly after approving the language in the First Amendment, appointed chaplains demonstrating “that the Framers considered legislative prayer a benign acknowledgement of religion’s role in society.” To require that all prayers be nonsectarian, “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech.” This would involve government in religious matters to a far greater degree than the Town’s policy of not editing or prescribing the content of the prayers. The timing of the prayer, occurring as it does at the beginning of a legislative session, also connotes a nonsectarian message of gravity and solemnness that reflects upon the country’s shared ideals and common ends. This aspect of the case effectively overrules Rubin v. City of Burbank, 101 Cal.App.4th 1194 (2003), a California Court of Appeal decision holding that Marsh prohibits sectarian prayer at council meetings.

The Supreme Court also found the Town did not violate the Establishment Clause by inviting predominantly Christian ministers. The Town made a reasonable effort to identify and contact all of the congregations within its borders and welcomed any minister or layman who wished to give one. “That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths.” Instead, the Town’s practice on nondiscrimination meant it was not required “to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.”

Impact in California

It should be noted that the Supreme Court’s decision in Town of Greece is limited to an analysis of the First Amendment under the federal Constitution. Plaintiffs will attack invocations in California in state court, and it remains an open question whether the prayer activity at issue in Town of Greece would also pass muster under the California Constitution. 

The California Constitution has both an Establishment Clause and a No Preference Clause.  The courts have found that the Establishment Clause of the California Constitution creates no broader protection against establishment of religion than the Establishment Clause of the United States Constitution.  (E. Bay Asian Local Dev. Corp. v. California, 24 Cal. 4th 693 (2000); Barnes-Wallace, 704 F.3d 1067, 1082 (9th Cir. 2012)  The courts have further found that a government action that satisfies the test of Lemon v. Kurtzman (the traditional test for the permissibility of government action under the federal Establishment Clause) also passes muster under the California No preference Clause.  (Id.) 

In Town of Greece, however, the Supreme Court did not apply the Lemon test. Thus, it is not clear that the analysis used in Town of Greece would be sufficient to also pass muster under the California No Preference Clause. Accordingly, those cities and counties under California jurisdiction should not only consider the recent Town of Greece decision when evaluating the constitutionality of prayer at government functions but must also consider whether such activity complies with the jurisprudence under the No Preference Clause of the California Constitution.       

Summary

While this ruling by the U.S. Supreme Court clearly supports that the view that local agency governing body meetings need not be religion, it still is advisable, particularly in light of the uncertain meaning of the California Constitution, to enlist best practices to seek to obtain a diverse panel of guest chaplains and to insure that no one attending a Council meeting feels coerced. Some suggestions include:

• No person attending a city council meeting should be required to participate in any prayer.
• Neither the council nor the clerk should ask about or review the content of any prayer.
• No City official should  ask the audience to take any overt act either (bow head, stand up, etc.).
• The clerk should not remove a congregation from the list of invitees or refuse to include one.
• No speaker should offer a prayer at consecutive meetings or at more than three meetings in a year.
• Hold invocations at the beginning of meetings.
• Have a written statement acknowledging that the invocation policy is open to all and that the prayers are not intended to advance, proselytize, or disparage any one faith over others.
• Publicize that the invocation is open to anyone by posting on the City website and/or announcing at Council meetings.
• Actively reach out to non-traditional faith groups to increase the diversity of invocation speakers.