Kerry Morgan is a 2015 graduate of the University of Missouri-Kansas City School of Law, where she served as managing editor of The Urban Lawyer.
Picture an average town in America. Every month, the governing body of this town holds an open meeting to discuss town issues and connect with citizens. The meetings are not well attended as the only people who show up, besides the town board members, are people with problems to raise and solutions to request. The small crowd slowly gathers in the meeting room. Papers shuffle as nervous citizens review the presentations and supplications they are about to make to the town board. Maybe there are a few conversations in the background; perhaps the room is silent. The board members enter and call the meeting to order.
At the start of the meeting, everyone stands to recite the Pledge of Allegiance. As the audience members sit, the leader of the board invites a local pastor to the front of the room. The pastor strides to the podium, faces the audience, and asks, “Will you bow your heads in prayer with me?” The pastor then gives a prayer that might sound something like this:
We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. Jesus Christ, who took away the sins of the world, destroyed our death, through his dying and in his rising, he has restored our life. Blessed are you, who has raised up the Lord Jesus, you who will raise us, in our turn, and put us by His side.1
The prayer giver closes the prayer by saying something like, “We ask it all in the name of Jesus Christ, our savior.”2 As the prayer giver returns to his or her seat, the meeting moves on into town business, and the citizens in attendance begin to bring their concerns before the board.
Wait, is that legal? Can a city include a prayer like this in its governmental sessions without violating the Establishment Clause? The United States Supreme Court recently faced this question in Town of Greece v. Galloway.3 The outcome of the case was not easy to predict due to the multitude of Establishment Clause tests the Court could have employed.4 The Court could have relied on Marsh v. Chambers,5 the case that is most analogous to this one, in which the Court upheld the Nebraska state legislature’s practice of opening its sessions with a prayer given by a hired chaplain. A state legislature is different than a town board, however, in that citizens interact much more directly in town board meetings, and town boards often perform a mixture of legislative and administrative functions. If it determined that those distinctions ought to matter, the Court could have turned to the endorsement test proposed by Justice O’Connor,6 the coercion test proposed by Justice Kennedy,7 or a number of other tests used in recent years.
Ultimately, the Court upheld the Town’s practice of beginning its monthly meetings with prayer in a five-four decision. However, the five in the majority split on their reasoning for upholding the practice, leaving uncertainty about the appropriate use and meaning of several Establishment Clause tests. Part II of this paper will discuss the endorsement test originally proposed by Justice O’Connor. Part III will discuss the coercion test proposed by Justice Kennedy. Part IV will discuss Marsh v. Chambers and the historical approach. Part V will explore the analysis the Supreme Court used in Town of Greece and what that analysis tells us about the vitality of the endorsement test, the coercion test, and the historical approach. Part VI will di cuss the practical consequences of Town of Greece for municipalities.
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