April 01, 2015 Urban Lawyer

Municipalities & Religion: The Lessons of Town of Greece v. Galloway

by Kerry Morgan

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.

I.  Introduction

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.

II.  The Endorsement Test

Justice O’Connor first introduced the endorsement test in 1984 in Lynch v. Donnelly.8 In Lynch, the Court faced a challenge to a Rhode Island city’s long-standing practice of putting up a Christmas display that included a creche as well as many other traditional Christmas decorations.9 Instead of applying the traditional three-pronged Lemon test,10 Justice O’Connor proposed a test that would question whether the challenged law or practice indicates “government[al] endorsement or disapproval of religion.”11 The challenged law or practice would fail the endorsement test when “the government intends to convey a message of endorsement or disapproval of religion,” or when the law or practice has the effect of communicating such a message.12

A majority of the Court expressly adopted the endorsement test five years after Lynch in County of Allegheny v. ACLU.13 Justice Blackmun, writing for the majority, indicated that the Court had long “paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of ‘endorsing’ religion.”14 He explained that whether the challenged practice has the effect of endorsing religion depends on how the viewers of the government’s message will understand the message in context.15 The Court added that the effect of the message should be judged from the perspective of a “reasonable observer.”16 Justice O’Connor later clarified that this reasonable observer is an educated person who “must be deemed aware of the history and context of the community and forum in which the religious display appears,” so that the reasonable observer will appreciate, and not be immediately offended by, historical practices that incorporate religion.17 This clarification prevents the endorsement test from turning into a heckler’s veto, as it would if the test were purely a subjective one.18 After all, “[t]here is always someone who, with a particular quantum of knowledge, reasonably might perceive a particular action as an endorsement of religion.”19

Justice O’Connor joined the majority opinion in County of Allegheny, but she also wrote a concurring opinion in which she stressed that a purpose or goal of the endorsement test, and the reason she believed it was a good test, is to prevent the government from sending a message that certain religions are favored and others are disfavored.20 This is important because when the government sends such a message, it tells its constituents that some of them are outsiders from the political community because of their religious beliefs.21 Justice O’Connor also spent a large part of her concurrence defending the endorsement test from the attacks made by Justice Kennedy in his dissenting opinion.22

Justice Kennedy, in his partial dissent from the decision in County of Allegheny, explained why he believed the endorsement test was flawed. He opined that unless the endorsement test included “artificial exceptions for historical practice,” certain longstanding traditions that include religion, such as legislative prayer, would fail the test.23 He illustrated how important historical practice is to his understanding of the Establishment Clause when he said, “Whatever test we choose to apply must permit not only legitimate practices two centuries old but also any other practices with no greater potential for an establishment of religion.”24 Many of the United States’ traditions have religious undertones and would fail the endorsement test, at least according to Justice Kennedy;25 thus, he concluded that the endorsement test cannot be the correct test.26

III.  The Coercion Test

In his County of Allegheny partial dissent, Justice Kennedy proposed that Establishment Clause questions should properly be analyzed under a coercion test.27 Under this test, the government violates the Establishment Clause when it “coerce[s] anyone to support or participate in any religion or its exercise” or when it “give[s] direct benefits to religion in such a degree that it in fact ‘establishes a [state] religion or religious faith, or tends to do so.”28 While direct legal coercion, such as a requirement that government officials must take a religious oath before they may assume office,29 would certainly violate the Establishment Clause,30 Justice Kennedy explained that certain obtrusive speech that puts “the government’s weight behind an obvious effort to proselytize on behalf of a particular religion,” like a “permanent erection of a large Latin cross on the roof of city hall,” would also fail the coercion test.31 Where there was no coercion, Justice Kennedy did not see any realistic risk of an Establishment Clause violation.32

Justice Kennedy defined coercion by giving examples from prior cases rather than by articulating a standard that can be used to determine when an action is coercive.33 His examples of coercion included religious oath requirements for government jobs, government power delegated to religious groups, and compelled or coerced “participation or attendance at a religious activity.”34 Ultimately, “passive or symbolic accommodation” of religious speech and symbols, as long as  that accommodation does not become obtrusive like the year-round Latin cross, would not be coercive in Justice Kennedy’s view.35

Justice O’Connor responded to Justice Kennedy’s proposed coercion test in her County of Allegheny concurrence.36 She argued that the coercion test does not adequately protect religious liberty because it does not take into account “the numerous more subtle ways that government can show favoritism to particular beliefs.”37 Plus, she pointed out, to require a showing of coercion to win a case based on the Establishment Clause would make the Free Exercise Clause redundant.38 As soon as someone has been coerced into participating in a religious exercise, that person’s Free Exercise rights have been violated; what more does the Establishment Clause add if it is based only on coercion?39

Justice Kennedy, writing for a five member majority,40 applied the coercion test to a public school graduation prayer in Lee v. Weisman, decided in 1992.41 The Court found that the nature of a graduation ceremony makes attendance compulsory in that students work towards and look forward to graduation throughout their time in school, and it would be unfair to expect them to skip the ceremony because of a prayer.42 Because the Court found that the state, through the school, had compelled students to participate in a religious exercise at an event that the students could not reasonably or practically avoid, the Court held the practice of including prayer in a public school’s graduation ceremony unconstitutional.43

Justice Kennedy’s coercion ideas appear throughout his opinion, but interestingly, he rarely used that word and refrained from explicitly adopting or applying the coercion test. Instead, he referred to “compulsion” and “persuasion.”44 Perhaps, as the next paragraphs will show, this was necessary for Justice Kennedy to get the necessary five votes to carry a majority of the Court.

Justice Blackmun, who joined the majority opinion, wrote a concurring opinion as well, and he was joined by Justices Stevens and O’Connor.45 Justice Blackmun made clear that while he agreed with Justice Kennedy that coercion is sufficient to prove the Establishment Clause has been violated, he did not agree that coercion was necessary to prove a violation.46 Thus, Justices Blackmun, Stevens, and O’Connor would not adopt or approve of the coercion test. Instead, Justice Blackmun would go further and use a test that would also prevent the government even from putting “its imprimatur on a particular religion.”47 Though he used the word “imprimatur” rather than “endorsement,” Justice Blackmun included a footnote after that quotation in which he quoted Justice O’Connor’s language about endorsement.48 He summed up his concurrence and his views on how the Establishment Clause should be interpreted by saying, “our cases have prohibited government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens were coerced to conform.”49

Justice Souter, joined by Justices Stevens and O’Connor, also wrote a concurring opinion in which he rejected the coercion test as incompatible with established Establishment Clause precedent.50 He referred to multiple cases in which the Court struck down a law or practice that was clearly not coercive.51 These cases, in Justice Souter’s view, “simply cannot . . . support the position that a showing of coercion is necessary to a successful Establishment Clause claim.”52 Justice Souter also reiterated the point that Justice O’Connor made in County of Allegheny, that because the Free Exercise Clause already protects individuals from coercion, “the coercion test would render the Establishment Clause a virtual nullity.”53 He went on to describe actions and statements of such founding figures as Thomas Jefferson and James Madison that indicate they may have understood the Establishment Clause to prohibit “official endorsement of religion.”54 He adopted Justice O’Connor’s endorsement test, saying the “principle against favoritism and endorsement has become the foundation of Establishment Clause jurisprudence, ensuring that religious belief is irrelevant to every citizen’s standing in the political community.”55

These two concurrences demonstrate that four of the five Justices in the Lee majority favored the endorsement test,56 leaving Justice Kennedy as the only member of the majority who favored the coercion test. Though Justice Kennedy wrote the opinion of the Court, his coercion test failed to carry the day. The four concurring Justices57 made clear that, while they were satisfied that coercive governmental action did violate the Establishment Clause and they agreed that the graduation prayer was coercive, they still favored the more demanding endorsement test.58

Justice Scalia, joined by Chief Justice Rehnquist and Justices White and Thomas, dissented in Lee.59 Justice Scalia’s descriptions of Justice Kennedy’s coercion test sound almost livid: “The Court’s argument that state officials have ‘coerced’ students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.”60 He vehemently rejected the notion that psychological or social pressure could amount to a level of coercion that would violate the Establishment Clause.61

Justice Scalia made clear in his dissent in Lee that he agreed with Justice Kennedy’s statement that the “government may not coerce anyone to support or participate in religion or its exercise;” he just disagreed about the meaning of “coerce.”62 According to Justice Scalia, coercion entails a “threat of penalty” such as a tax or other financial or legal consequence.63 He saw no justification for including psychological coercion in the Establishment Clause analysis.64

IV.  Marsh v. Chambers and the Historical Approach

The historical approach consists of just what its name suggests. Justices who use this approach examine practices that were prevalent at the time the Constitution was drafted and ratified to determine what the drafters intended particular clauses to mean.65 “An act ‘passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, . . . is contemporaneous and weighty evidence of [the Constitution’s] true meaning.’ ”66 A long history does not automatically render a particular practice constitutional, but it does provide strong evidence that the drafters of the Constitution did not intend to forbid that practice.67

Marsh v. Chambers was, from the time it was decided in 1983 until the Court decided Town of Greece in 2014, the only United States Supreme Court case that addressed the issue of opening legislative sessions with prayer. In Marsh, the Court examined the Nebraska practice of opening its state legislative sessions with a prayer given by a chaplain who was hired and paid by the legislature.68 The six member majority in Marsh relied on the historical approach to hold that because the practice of opening legislative sessions with prayer had been employed by the same people who had written and passed the Establishment Clause and had then endured for two centuries, it had become “part of the fabric of our society” and constituted nothing more than an acknowledgment of religion.69 Marsh focused solely on historical practices, disregarding all other Establishment Clause tests.70

Justice Kennedy has previously applied the historical approach in conjunction with the coercion test. In his 1989 County of Allegheny partial dissent, he referred to historical practices such as legislative prayer, opining that those practices provide guideposts to utilize when applying the coercion test.71 If, in a current Establishment Clause case, the challenged governmental practice does not benefit religion any more directly or substantially than those historical practices did, the practice is merely a permissible accommodation or acknowledgement of religion.72 His frequent references to historical practices and historical figures in County of Allegheny indicate that, while Justice Kennedy applies the coercion test instead of a purely historical approach, his views of what is actually coercive are heavily influenced by history.

Both Justices Scalia and Thomas take historical practices seriously in their Establishment Clause analysis. In his 1992 dissent in Lee, which Justice Thomas joined, Justice Scalia stated that he could not join the majority opinion because it failed to account for traditional governmental prayer.73 He listed multiple historical examples of governmental prayer, including presidential inaugural prayers, Thanksgiving proclamations, legislative prayer, religious invocations at the start of court sessions, and even prayers at graduations.74 He would have held the graduation prayer in Lee permissible given such widespread and longstanding historical examples supporting public prayer, and because there was no legal penalty coercing students to participate in the prayer.75

V.  Town of Greece v. Galloway

A.  Background

The town of Greece, New York has a population of about 96,000 and is governed by a town board consisting of the Supervisor of the Town and four council members.76 The mission statement of the board describes the board’s purpose as “[t]o provide policy direction and leadership to the Town organization by serving as liaison between the Town and a variety of community organizations, neighborhood groups, boards, commissions and citizens concerning community issues. The board identifies and responds to community short term needs.”77 In order to serve that purpose, the board holds a monthly meeting at which citizens gather to voice their concerns and ask for board action.78

Since 1999, the Town has opened these board meetings with a prayer.79 At first, the Town used a rather haphazard method to select a person to deliver the prayer; each month, a Town employee randomly called local religious organizations listed in a directory published by the Town’s Chamber of Commerce until someone agreed to give the prayer.80 The only religious organizations listed in the directory at that time were Christian organizations, so the prayers were given predominately by Christian clergy.81 With the exception of four prayers delivered in 2008, while the Town was under threat of litigation,82 all of the prayers in the record83 were delivered by Christians, and many of them contained expressly Christian content.84

The citizens attending the board meeting sit facing the board members who are seated on a dais.85 After the citizens and the board recite the Pledge of Allegiance, the Town Supervisor invites the prayer giver to deliver the prayer.86 The prayer giver goes to the front of the room and stands between the citizens and the board with his back to the board members as he or she delivers the prayer facing the citizens.87

The board meeting has two primary parts: a public forum and a public hearing.88 The public forum follows the prayer closely, though they are sometimes separated by awards ceremonies or oath ceremonies.89 At the public forum, citizens petition the board to address municipal issues such as traffic concerns and criminal activity.90 The public hearing takes place thirty minutes after the start of the board meeting, even if the first part of the meeting runs long or short.91 During the public hearing, citizens approach the board to request action on matters such as zoning changes and business permits.92

The respondents, two citizens of the Town, argued that the Town’s prayer practice violated the Establishment Clause for two reasons: “[The prayer practice] puts coercive pressure on citizens to participate in the prayers, and those prayers are sectarian rather than inclusive.”93 Because citizens must attend board meetings in order to request board action, their attendance was not truly voluntary.94 Further, because the Town invited almost exclusively Christian clergy to deliver the prayers without making any effort to encourage the prayer givers to pray in a way that would be acceptable to multiple religions, the Town specifically endorsed Christianity.95

The Town argued that under Marsh, legislative prayer is permissible as long as the government does not “act with ‘impermissible motive’ in selecting prayer-givers,” and does not use the prayer practice “ ‘to proselytize or advance any one, or to disparage any other, faith or belief.’ ”96 Because anyone was welcome to give the prayers and because the prayers merely reflected the beliefs of the individual prayer givers without preaching conversion or otherwise discriminating against members of other faiths, the Town argued that its prayer practice passed the criteria set out in Marsh.97

B.  The Town of Greece Opinions

The Court was split five-four in Town of Greece, with five Justices98 voting to uphold the prayer practice, though the five were split into three and two on their reasoning, and four Justices99 voting to strike it down. Justice Kennedy wrote the majority opinion upholding the prayer practice. His opinion relied heavily on Marsh v. Chambers, which in turn relied heavily on the historical approach.100 Justice Kennedy explained that since Marsh allows the Court to acknowledge practices that were accepted at the time of and that have lasted since the framing of the Constitution, to decide this case the Court only had to determine “whether the prayer practice in the town of Greece fits within the tradition [of opening legislative sessions with prayer] long followed in Congress and state legislatures.”101

In answering that question, the five member majority102 first rejected an argument that the sectarian nature of the majority of the prayers placed the Town’s prayer practice outside the tradition approved in Marsh.103 The Court explained that the content of the prayers had no effect on the analysis in Marsh, which only questioned the prayers’ consistency with history and religion.104 The Court relied on the historical approach to conclude that the First Congress, which wrote and passed the First Amendment, found references to Christian dogma acceptable; therefore, those kinds of references do not violate the Establishment Clause.105

Furthermore, the Court wanted to avoid opening up an inquiry into the sectarian nature of the prayers’ content and what exactly would be acceptable in a prayer. Involving questions about the sectarian content of prayers in Establishment Clause inquiries raises line drawing problems for judges, and the Court voiced a concern that any line drawn would be essentially meaningless given the number and diversity of religious beliefs.106 For example, Justice Kennedy pointed out that “even seemingly general references to God or the Father might alienate nonbelievers or polytheists.”107 At most, a nonsectarian requirement could make the prayer acceptable to a majority, but the prayers would still exclude citizens whose beliefs do not include a generic god.108

Rather than leave content out of the analysis entirely, though, the Court held that prayers offered to begin a legislative session must serve the purpose of lending gravity to the occasion; that purpose is accomplished by prayers that are “solemn and respectful in tone, that invite[] lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing.”109 A prayer practice that, as a whole and viewed over time, degrades atheists or adherents of other religions would not satisfy this test.110 Respectful references to particular religious doctrines serve only as a particular minister’s means to a universal end, according to the Court.111

Applying this “gravity” test, the Court found that overall, the prayers given at the beginning of the Town board meetings contained common civic themes such as peace, wisdom, and justice.112 Though the respondents were able to point to at least two prayers in the record which did have disparaging content,113 the Court found that the prayer practice as a whole served only to solemnize the board meetings, and a few deviating prayers were not enough to spoil the entire prayer practice.114

In the final portion of Justice Kennedy’s opinion that mustered a majority, the Court rejected the argument that the Town’s practice of inviting almost solely Christians to deliver the prayers caused an Establishment Clause violation.115 Instead, the Court found that since “[t]he [T]own made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one,” the Town had not discriminated against any non-Christian religion.116 As long as the prayer policy was nondiscriminatory, the Town was not re- quired to make special efforts to diversify the religions represented at the board meetings.117

The final part of Justice Kennedy’s opinion, Part II-B, was joined only by Chief Justice Roberts and Justice Alito, leaving it without majority effect. In Part II-B, Justice Kennedy rejected the argument that the Town’s prayer practice violated the Establishment Clause on coercion grounds. In spite of the Respondents’ attempt to rely on Justice Kennedy’s own views of subtle psychological coercion espoused in Lee,118 Justice Kennedy found no coercion in the Town’s prayer practice and relied heavily on the historical approach of Marsh.119

Justice Kennedy presumed that reasonable observers are aware of the multiple traditions acknowledging God in this country, including legislative prayer, the Pledge of Allegiance, and presidential prayers.120 Because of these traditions, citizens could appreciate the Town’s prayer practice without being compelled or coerced to participate.121 Furthermore, the purpose of the prayers was to put legislators in a contemplative state of mind rather than to have any effect on observers.122 Since the legislators never directly requested the citizens to participate or signaled displeasure with nonparticipants, and since there is no evidence that a nonparticipant was ever treated badly as a result of his or her nonparticipation, there was no coercion.123 Justice Kennedy further stated that “[o]ffense . . . does not equate to coercion.”124 Adults who were in the room of their own free choice and who faced no repercussions125 from choosing not to participate cannot have been coerced to participate in a religious exercise.126

Justice Alito, though he joined the entirety of Justice Kennedy’s opinion, wrote a concurring opinion in which he responded to points made by Justice Kagan in the principle dissent.127 His opinion focused on the historical approach and expressed concern that the dissenters’ approach would prevent towns from having prayers before meetings at all.128 Justice Thomas, joined by Justice Scalia, also wrote a concurring opinion.129 Both Justice Thomas and Justice Scalia joined in the majority opinion with the exception of Part II-B. Justice Thomas first explained why he believes the Establishment Clause should not have been incorporated against the states and should thus not be applied to this situation.130 He went on to say that “even if the Establishment Clause were properly incorporated against the States . . .” the only coercion that should matter to the analysis is “actual legal coercion.”131 Instead of focusing on societal pressures and indirect effects on a person, Justice Thomas would only find coercion when the government “exact[ed] financial support of the church, compel[led] religious observance, or control[led] religious doctrine.”132 As none of that was involved in this case, Justice Thomas, joined by Justice Scalia, voted to uphold the prayer practice.133

Justice Breyer joined the principal dissent, but he also dissented separately to emphasize certain facts he found important to the analysis, such as the Town’s lack of effort to include representatives from faiths other than Christianity and the Town’s failure to take measures to make the prayers more inclusive.134 Justice Kagan wrote the principal dissent, and she was joined by Justices Ginsburg, Breyer, and Sotomayor.135 She would have struck down the prayer practice because it deviates from the ideal of equality before the law by potentially placing adherents of different religions in different positions when they approach their local government.136 She agreed with the Marsh decision but viewed the Town’s prayer practice differently because of the participatory role citizens play in the Town board meetings.137

Justice Kagan characterized the Town board as “a kind of hybrid” body that does perform legislative functions, but also interacts with citizens in an individualized way.138 If it had just been a legislative body, Justice Kagan might have agreed with the majority that the prayers fit in the tradition of Marsh.139 Even though the Town board is a hybrid body, Justice Kagan did not suggest that all prayer would be unacceptable; she would just require prayers to be inclusive so that the government treats all citizens equally, regardless of their religious beliefs.140 Since the prayers were not inclusive, she found that the Town’s prayer practice “departs from the legislative tradition that the majority takes as its benchmark.”141

After determining that the Town’s prayer practice could not “simply ride on the constitutional coattails of the legislative tradition Marsh described,” Justice Kagan described a religious neutrality test: “The government (whether federal, state, or local) may not favor, or align itself with, any particular creed.”142 Specifically in the legislative prayer context, she clarified that the Establishment Clause requires the government to “ensure that its participatory processes will not classify those citizens by faith, or make relevant their religious differences.”143 The Town could have done this in a way that would have satisfied Justice Kagan and, presumably, the other dissenters by telling the prayer givers to “speak in nonsectarian terms, common to diverse religious groups”144 or by inviting clergy of different faiths to give the prayers on some sort of a rotating basis.145

C.  What Does Town of Greece Tell Us About the Endorsement Test?

The Court could have used the endorsement test in Town of Greece. Justice O’Connor originally opined that the endorsement test accomplishes the important task of making sure that the government cannot make “adherence to a religion relevant in any way to a person’s standing in the political community.”146 She also said, “Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”147 These statements, and the spirit they suggest the endorsement test has, could have supported a decision striking down the Town’s prayer practice. The nature of small town meetings makes it easy for everyone to see who is participating and who is not. The prayers made the Respondents, an atheist and a Jew, feel disconnected from their own local government.148 That seems to be exactly the kind of effect Justice O’Connor intended to prevent under the endorsement test.

Despite its availability, no Justice applied the endorsement test in Town of Greece. Justice Kennedy, with four other Justices, applied the historical approach.149 Justice Kennedy also applied the coercion test, but was joined in that part of his opinion by only two other Justices.150 Justice Thomas, joined by Justice Scalia, applied the historical approach and a different form of the coercion test, one that requires actual legal compulsion to prove an Establishment Clause violation.151 Justice Breyer did say that he found “the Court of Appeals’ conclusion and its reasoning . . . convincing,” and the Court of Appeals had applied the endorsement test to strike down the Town’s prayer practice.152 However, he joined Justice Kagan’s dissent, in which she did not apply the endorsement test, and he did not explicitly mention the endorsement test anywhere in his dissenting opinion.153

Several of the Justices implicitly criticized the endorsement test. Justice Kennedy began his criticism by repudiating the way the County of Allegheny Court characterized Marsh.154 In County of Allegheny, the Court avoided Marsh by determining that the prayers at issue in that case had been found constitutional in part because they contained no reference to Christ.155 The County of Allegheny Court made that point in response to Justice Kennedy’s criticism of the endorsement test’s lack of concern for historical practices; the Court’s reasoning was that if Marsh had upheld the state legislature’s prayer practice because of the nonsectarian nature of the prayers, then the historical approach would be less important and could be avoided.156 Justice Kennedy, in Town of Greece, clarified that the content of the prayers had no effect on the Marsh analysis and that the prayers at issue in Marsh had been upheld because they fit into a historical tradition of legislative prayer.157 In doing so, Justice Kennedy and the four Justices who joined this portion of his opinion restored Marsh to its pre-County of Allegheny strength while also suggesting that the County of Allegheny Court’s response to Justice Kennedy’s criticism was misguided.158 Thus, they implied that they still find merit in Justice Kennedy’s original criticism of the endorsement test.

In one sentence of his concurring opinion, Justice Alito implicitly questioned the validity of the endorsement test:

In the case before us, the Court of Appeals appeared to base its decision on one of the Establishment Clause “tests” set out in the opinions of this Court, but if there is any inconsistency between any of those tests and the historic practice of legislative prayer, the inconsistency calls into question the validity of the test, not the historic practice.159

The Second Circuit had applied the endorsement test to strike down the Town’s prayer practice.160 Justice Alito’s criticism, then, was directed at the endorsement test. The quotation marks he used around the word “tests” make his statement sound sarcastic, as if to suggest that none of the Establishment Clause tests have any merit. Perhaps Justice Alito meant to criticize only the endorsement test, or perhaps he actually is dissatisfied with all of the available Establishment Clause tests. He seems to have placed so much importance on the historical approach that he would uphold any practice with a strong enough history regardless of what other “tests” that practice might violate. Then again, he joined Part II-B of Justice Kennedy’s opinion in which Justice Kennedy applied the coercion test.161 Regardless, Jus- tice Alito clearly disapproves of the endorsement test, at least when it would lead to a result different than the result reached under the historical approach.

Justice Thomas also criticized the endorsement test in his concurrence.162 “[T]here is no support for the proposition that the framers of the Fourteenth Amendment embraced wholly modern notions that the Establishment Clause is violated whenever the ‘reasonable observer’ . . . perceives governmental ‘endors[ement].’ ”163 To support this view, Justice Thomas again relied on history, seeking only to determine what the Framers of the First and Fourteenth Amendments meant to accomplish.164

Justice Scalia is certain that Town of Greece “abandoned the antiquated ‘endorsement test.’ ”165 He dissented from the Court’s decision to deny certiorari in a case in which the court of appeals had applied the endorsement test to invalidate a public high school’s decision to hold its graduation ceremony in a church.166 Because the Court, in Town of Greece, had just reversed a Second Circuit opinion applying the endorsement test, and because Justice Scalia believed the Court had strongly suggested its disapproval of the endorsement test in Town of Greece, Justice Scalia would have granted certiorari to at least vacate the judgment and remand the case so that it could be re- considered under a different test.167

D.  What Does Town of Greece Tell Us About the Coercion Test?

The coercion test lives on after Town of Greece, and it continues to be confusing. Justice Kennedy, joined by only two Justices in this portion of his opinion, found the Town’s prayer practice noncoercive.168 The only guidance he gave as to how to determine whether a practice is coercive is that “[t]he inquiry remains a fact-sensitive one that considers both the setting in which the prayer arises and the audience to whom it is directed.”169 These are the facts he focused on to conclude that the Town’s prayer practice was not coercive: the prayer was directed at legislators rather than the public,170 the board members did not ask the public to participate or indicate that the public’s participation would influence their decisions,171 members of the public were free to leave the room during the prayer and object to the prayer practice later,172 and the prayer was given “during the ceremonial portion of the [T]own’s meeting.”173 These facts were enough here to save the prayer practice, but it is unclear what Justice Kennedy might think in a different case when the facts are slightly different. He wrote both the Town of Greece opinion upholding a prayer practice and the opinion in Lee striking down a prayer practice,174 which demonstrates that he is very sensitive to facts, and it only takes a few subtle differences to sway his decision.

Justices Thomas and Scalia agree with Justice Kennedy that coercion violates the Establishment Clause,175 but they take a different view as to what constitutes coercion.176 In their view, only “actual legal coercion,” such as a tax or other legal penalty, constitutes impermissible coercion, while “subtle pressure” should have no bearing on Establishment Clause analysis.177

Justice Kagan applied a neutrality test in her dissent, but she never mentioned the coercion test.178 Presumably then, she and the three Justices who joined her dissent would not adopt the coercion test, though they did not explicitly disavow it in this case. We are left with five Justices who agree with the idea that coercion violates the Establishment Clause but no majority agreement on what the definition of coercion should be.

E.  What Does Town of Greece Tell Us About the Historical Approach?

Prior to Town of Greece, Marsh could have been dodged as an exception to the more typical Establishment Clause tests.179 Marsh has been used now and then to support the idea that history can, but not must, be used to support the constitutionality of a practice.180 In Town of Greece, the Court strengthened the historical approach from an exception or occasional approach to something that must be considered in every case. Five Justices, through Justice Kennedy, held that Marsh teaches “that the Establishment Clause must be interpreted ‘by reference to historical practices and understandings.’ ”181 Furthermore, “[a]ny test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.”182 No longer is history something the Justices can pull out of their pockets when it suits their needs and ignore when it does not. These statements indicate that the Establishment Clause must be interpreted in accordance with historical practices, even outside the legislative prayer and religious displays contexts where history has already been playing a role in the analysis.183

Even the dissent did not dispute the validity of the historical approach; Justice Kagan just viewed the history more narrowly than the majority did.184 She began her analysis with the historical approach, concluding that it did not resolve this case not because the historical approach is wrong, but because the Town’s practice does not fit into the historical tradition of state and federal legislative prayer.185 Perhaps she merely began with history because it made the most sense to respond to the majority in that way, but she explicitly said that Marsh was decided correctly before she concluded that Marsh’s tradition should not save the Town’s prayer practice.186

Of course, the Court has previously been adept at distinguishing Establishment Clause cases when it wishes to avoid a particular test. Just look at the history of the Lemon test as an example.187 A future Court wanting to avoid the historical approach could limit the broad statements to the legislative prayer context and move on to yet another Establishment Clause test. But for now, the historical approach holds great weight with the Court.

VI.  Practical Consequences of Town of Greece for Municipalities

Today’s Supreme Court appears to be receptive to municipalities’ at- tempts to incorporate religion into governmental functions. After Town of Greece, municipalities can be confident that they can incorporate prayers into legislative sessions as long as the prayer practice serves to solemnize the session rather than to proselytize or disparage a particular faith.188 But what does Town of Greece tell municipalities about the permissibility of incorporating religious expression in contexts other than legislative sessions?

The coercion test is more forgiving of governmental religious expression than the endorsement test. The difficulty facing municipalities that are trying to determine whether a particular religious activity is permissible is that no majority of the Court has adequately defined what constitutes coercion. Even Justice Kennedy, the main proponent of the coercion test, has written only that the test is fact sensitive and takes into account the setting and the audience.189 Without more definite guidelines, it is difficult to predict which facts Justice Kennedy might find significant next time. Since the Court was divided 5-4 in Town of Greece, the next case could easily come out differently if Justice Kennedy can be swayed by the particular facts.

Town of Greece may have consequences beyond just the legislative prayer context. If the endorsement test truly was eliminated by Town of Greece and if five Justices continue to adhere to some version of the coercion test, perhaps a municipality that toes the line with a religious display such as a crehe could bring a case that convinces the Court to reexamine religious display cases under the coercion test. It is hard to imagine a crehe or other display that would violate the coercion test following Town of Greece. Viewing a passive cre`che display involves much less participation than attending a town board meeting, and it would be easy to argue that citizens always have the choice to avoid looking at the display. An approach like that in Town of Greece could give municipalities more latitude in erecting religious displays. However, with the Court’s focus on the specific facts of each case and without a working definition of coercion, the outcome of future cases is anything but certain. Furthermore, the Court may be unwilling to overturn all of the religious display cases and could avoid the tension between the coercion and endorsement tests by instead using a different test altogether, such as the neutrality test Justice Kagan would have applied in Town of Greece.190

While there might be a good argument that the Court should recon- sider the appropriate test to apply in cre`che and other religious display cases after Town of Greece, Justice Kennedy’s vote is hard to predict. As he tends to provide the swing vote in cases involving the government’s religious expressive activity, his views are important to understand in order to find the boundaries of the Establishment Clause under the current Court’s jurisprudence. Since Justice Kennedy’s views are hard to pinpoint, the Establishment Clause boundaries are difficult to pinpoint as well. Municipalities will have to decide if it is worth the risk to toe the Establishment Clause line on the chance that Justice Kennedy will feel favorably toward them.191

VII.  Conclusion

Justice Alito indicated that he hoped Town of Greece would make it easier for towns to incorporate prayer without fear of litigation.192 This case does indicate that the current Court is friendly to practices that toe the Establishment Clause line and is willing to focus on the bigger historical context of those practices, even when there are facts that would seem to make the issue more difficult. However, the split majority and the “fact sensitive inquiries” leave open the possibility that minor factual differences could change the result the next time. What Town of Greece does teach us is that the historical approach is incredibly important to the Court, and the endorsement test is likely gone. Parties that have to argue against a historical practice will be hard-pressed to win their cases. Still, the coercion test holds sway over a few Justices, and it may provide a way to win Justice Kennedy over and therefore sway the whole decision in a close case, at least as long as there is no strong historical argument going the other way.

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  1. Brief for Respondents at 9-10, Town of Greece v. Galloway, 134 S. Ct. 1811 (2014) (No. 12-696), 2013 WL 5230742, at *9-10. This was one of the prayers given at a town board meeting in Greece, New York. It is one of the more extreme examples, but many of the prayers involved in the case contained similar explicit references to Christianity.
  2. Id. at 10-11.
  3. 134 S. Ct. 1811 (2014).
  4. See Steven G. Gey, Reconciling the Supreme Court’s Four Establishment Clauses, 8 U. PA. J. CONST. L. 725, 725 (2006) (discussing the ten Establishment Clause standards articulated in the decade preceding the article’s publication and explaining that many Justices often apply different standards to different situations); see also E. Gregory Wallace, When Government Speaks Religiously, 21 FLA. ST. U.L. REV. 1183, 1202-26 (1994) (describing multiple Establishment Clause tests).
  5. 463 U.S. 783 (1983).
  6. See discussion infra Part II.
  7. See discussion infra Part III.
  8. Lynch v. Donnelly, 465 U.S. 668, 688-89 (1984) (O’Connor, J., concurring).
  9. Id. at 671. The display included “a Santa Clause house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads ‘SEASONS GREETINGS,’ and the cre`che at issue here.” Id.
  10. “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
  11. Lynch, 465 U.S. at 688 (O’Connor, J. concurring).
  12. Id. at 691-92.
  13. 492 U.S. 573 (1989).
  14. Id. at 592.
  15. Id. at 595 (“[T]he question is ‘what viewers may fairly understand to be the purpose of the display.’ ”).
  16. Id. at 620.
  17. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O’Connor, J., concurring in part and concurring in the judgment).
  18. Id.
  19. Id.
  20. See Cnty. of Allegheny, 492 U.S. at 627 (O’Connor, J., concurring in part and concurring in the judgment).
  21. Id.
  22. See id. at 627-32 (explaining that the endorsement test is capable of consistent application, that it does take historical practice into account as “part of the context in which a reasonable observer evaluates” the challenged practice, and that it is not hostile toward religion because it recognizes that religious liberty is best protected when the government does not endorse religion.)
  23. Id. at 670 (Kennedy, J., concurring in the judgment in part and dissenting in part).
  24. Id.
  25. Justice Kennedy listed several examples: Thanksgiving proclamations issued by various Presidents, designation of a National Day of Prayer, prayer in the United States Congress, and the opening of Supreme Court sessions with “God save the United States and this honorable Court.” Id. at 671-72.
  26. See id. at 674.
  27. See id. at 659.
  28. Id.
  29. See id. at 660.
  30. In fact, that type of direct coercion would certainly violate the Establishment Clause regardless of the test used, and certainly the three tests mentioned in this paper.
  31. Id. at 661 (Kennedy, J., concurring in the judgment in part and dissenting in part).
  32. Id. at 662.
  33. Id. at 660.
  34. Id. One might have predicted, based on his inclusion of compelled attendance as an example of coercive activity, that Justice Kennedy would have disapproved of the prayers in Town of Greece.
  35. Id. at 662.
  36. Id. at 627 (O’Connor, J., concurring in part and concurring in the judgment).
  37. Id. at 627-28.
  38. Id. at 628.
  39. Id.; see also, Douglas Laycock, “Nonpreferential” Aid to Religion: A False Claim About Original Intent, 27 WM. & MARY L. REV. 875, 922 (1987) (criticizing the coercion test because governmental coercion already violates the Free Exercise Clause).
  40. The majority included Justices Kennedy, Blackmun, Stevens, O’Connor, and Souter.
  41. See 505 U.S. 577 (1992).
  42. Id. at 595 (“[I]t is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term ‘voluntary,’ for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years.”).
  43. Id. at 599.
  44. E.g., id. (“No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise.”).
  45. Id at 599 (Blackmun, J., concurring).
  46. Id. at 604.
  47. Id. at 606 (emphasis in original).
  48. Id. at 606 n.9.
  49. Id. at 609.
  50. See id. at 618 (Souter, J., concurring).
  51. Id. at 618-19 (referring to cases involving a nativity scene (Cnty. of Allegheny), a moment of silence (Wallace v. Jaffree, 472 U.S. 38 (1985)), a law prohibiting the teaching of evolution (Epperson v. Arkansas, 393 U.S. 97 (1968)), among others).
  52. Id. at 619.
  53. Id. at 621.
  54. See id. at 623.
  55. Id. at 627.
  56. Justices Blackmun and Justice Souter wrote the two concurring opinions, which were each joined by Justice Stevens and Justice O’Connor.
  57. Justices Blackmun, Souter, Stevens, and O’Connor.
  58. Lee, 505 U.S. at 627-28.
  59. Id. at 631 (Scalia, J., dissenting).
  60. Id. at 636.
  61. See id. at 637 (“We indeed live in a vulgar age. But surely ‘our social conventions’ have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence.”).
  62. Id. at 642 (quoting id. at 587 (majority opinion)).
  63. Id. at 640-42.
  64. See id. at 642.
  65. See Marsh v. Chambers, 463 U.S. 783, 790 (1983).
  66. Id.(citations omitted).
  67. Id.
  68. Id. at 786. The chaplain who had been serving the state legislature for sixteen years at the time the lawsuit was brought, Robert E. Palmer, was a Presbyterian minister. Id. at 785. The Court declined to examine the content of the prayers, saying simply that “the content of the prayer is not of concern to judges” where there was no evidence that the prayers were used to proselytize or discriminate; however, the Court did note in a footnote that the prayers had been explicitly Christian at one time, but that Palmer had since stopped referring to Christ. Id. at 793 n.14.
  69. Id.at 792.
  70. See id. at 786-92.
  71. Cnty. of Allegheny, 492 U.S. at 662 (Kennedy, J., concurring in the judgment in part and dissenting in part).
  72. See id. at 662-63.
  73. Lee, 505 U.S. at 631 (Scalia, J., dissenting).
  74. Id. at 633-36.
  75. See id. at 640-44.
  76. All About Greece, THE TOWN OF GREECE, http://greeceny.gov/Visitors (last visited May 30, 2015).
  77. Development Services, Town Board, THE TOWN OF GREECE, http://greeceny.gov/planning/townboard (last visited May 30, 2015).
  78. See Brief for Respondents, supra note 1, at 3.
  79. Town of Greece 134 S. Ct. at 1816.
  80. Id. at 1828 (Alito, J. concurring).
  81. Id. at 1828-29.
  82. Id. at 1839 (Breyer, J. dissenting).
  83. Assuming the prayers began in January of 1999, there were 120 prayers given by the end of 2008. Christians delivered 116 of the 120 prayers. Id.
  84. Id. at 1816 (quoting one prayer which expressed thankfulness for “the saving sacrifice of Jesus Christ on the cross.”); see also TOWN OF GREECE V. GALLOWAY, NO. 12-696, http://greecevgalloway.net/prayers (last visited May 30, 2015) (displaying videos of several of the prayers that contained explicit Christian references).
  85. See Brief for Respondents, supra note 1, at 8-9.
  86. Town of Greece, 134 S. Ct. at 1816.
  87. Brief for Respondents, supra note 1, at 8-9; see also TOWN OF GREECE V. GALLOWAY, NO. 12-696, http://greecevgalloway.net/prayers (last visited May 30, 2015) (displaying videos of prayer givers delivering prayers with their backs to the board members).
  88. Brief for Respondents, supra note 1, at 5.
  89. Id.
  90. Id. (including examples of citizens requesting disability accommodations, supporting a group home, and opposing construction of a Wal-Mart); see also TOWN OF GREECE V. GALLOWAY, NO. 12-696, http://greecevgalloway.net/public-forum (last visited Mar. 28, 2015) (containing video examples of citizens of Greece petitioning the board during the public forum).
  91. Brief for Respondents, supra note 1, at 6.
  92. Id. at 5-6; see also TOWN OF GREECE V. GALLOWAY, NO. 12-696, http://greecevgalloway.net/public-hearing (last visited May 30, 2015) (containing video examples of citizens of Greece petitioning the board and debating permit applications during the public hearing).
  93. Brief for Respondents, supra note 1, at 17.
  94. Id.
  95. Id. at 18-19.
  96. Brief for Petitioner at 12, Town of Greece v. Galloway, 134 S. Ct. 1811 (2014) (No. 12-696) 2013 WL 3935899 at *12 (quoting Marsh v. Chambers, 463 U.S. 783, 794-95 (1983)).
  97. See id. at 12-13.
  98. The five in the majority were Chief Justice Roberts and Justices Kennedy, Alito, Scalia, and Thomas.
  99. The four in the minority were Justices Kagan, Ginsburg, Breyer, and Sotomayor.
  100. See Town of Greece, 134 S. Ct. at 1818-20.
  101. Id. at 1819.
  102. Chief Justice Roberts and Justices Alito, Scalia, and Thomas all joined Parts I-II-A of Justice Kennedy’s opinion.
  103. See Town of Greece, 134 S. Ct. at 1820. The prayers frequently contained explicit references to Jesus Christ and Christian holidays. Justice Kennedy quoted two such prayers in Part I of his opinion. See id. at 1816-17.
  104. See id. at 1821. In Marsh, the Court stated, “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.” Marsh, 463 U.S. at 794-95.
  105. See Town of Greece, 134 S. Ct. at 1820-21.
  106. Id. at 1822.
  107. Id.
  108. See id.
  109. Id. at 1823.
  110. Id.
  111. Id.
  112. See id. at 1824. Justice Kennedy quoted the following prayer as an example of a prayer that expresses such common civic themes:
    “Gracious God, you have richly blessed our nation and this community. Help us to remember your generosity and give thanks for your goodness. Bless the elected leaders of the Greece Town board as they conduct the business of our town this evening. Give them wisdom, courage, discernment and a single-minded desire to serve the common good. We ask your blessing on all public servants, and especially on our police force, firefighters, and emergency medical personnel . . . Respectful of every religious tradition, I offer this prayer in the name of God’s only son Jesus Christ, the Lord, Amen.”
    Id.
  113. Id. (“One guest minister characterized objectors as a ‘minority’ who are ‘ignorant of the history of our country,’ while another lamented that other towns did not have ‘God-fearing leaders.’ ” (citations omitted)).
  114. See id.
  115. Id.
  116. Id.
  117. See id.
  118. See Brief for Respondents, supra note 1, at 20-30.
  119. See Town of Greece, 134 S. Ct. at 1825.
  120. Id.
  121. Id.
  122. Id. at 1826.
  123. Id.
  124. Id.
  125. The Respondents did argue that they felt pressure to participate in the prayers, or at least to avoid making a noticeable objection, to avoid alienating the board to whom they would soon make requests. Justice Kennedy rejected this argument because there was no evidence that this had actually occurred. Id.
  126. Id. at 1827.
  127. Id. at 1828 (Alito, J., concurring).
  128. Id. at 1831.
  129. Id. at 1835 (Thomas, J., concurring in part and concurring in the judgment).
  130. See id. at 1835-37.
  131. Id. at 1837.
  132. Id.
  133. Id. at 1838.
  134. See id. at 1839-40 (Breyer, J., dissenting).
  135. Id. at 1841-54 (Kagan, J., dissenting).
  136. Id. at 1841-42.
  137. See id.
  138. Id. at 1845.
  139. See id.
  140. Id.
  141. Id. at 1845-46.
  142. Id. at 1849. Though Justice Kagan did not fully explore the bounds of this test since the focus of her dissent was on criticizing the majority opinion, it does not appear that she was proposing a new test. Principles of neutrality have always appeared in Establishment Clause cases, dating back to Everson v. Board of Education, 330 U.S. 1 (1947), and have even been applied as a stand-alone test. See William A. Glaser, Worshiping Separation: Worship in Limited Public Forums and the Establishment Clause, 38 PEPP. L. REV. 1053, 1064-66 (2011).
  143. Town of Greece, 134 S. Ct. at 1849 (Kagan, J., dissenting).
  144. Id. at 1851.
  145. Id. at 1830.
  146. Lynch, 465 U.S. at 687 (O’Connor, J. concurring).
  147. Id. at 688.
  148. Brief for Respondents, supra note 1, at 14-15.
  149. See discussion supra Part V.B.
  150. See discussion supra Part V.B.
  151. See discussion supra Part V.B.
  152. See Town of Greece, 134 S. Ct. at 1841 (Breyer, J., dissenting).
  153. Id.
  154. Id. at 1821 (majority opinion).
  155. Id. (quoting Cnty. of Allegheny, 492 U.S. at 603).
  156. Cnty. of Allegheny, 492 U.S. at 602-03; see also Town of Greece, 134 S.Ct. at 1821 (“Four dissenting Justices disputed that endorsement could be the proper test, as it likely would condemn a host of traditional practices. . . . The Court sought to counter this criticism by recasting Marsh to permit only prayer that contained no overtly Christian references.”)
  157. Town of Greece, 134 S. Ct. at 1821.
  158. Id.
  159. Id. at 1834 (citation omitted).
  160. Galloway v. Town of Greece, 681 F.3d 20, 29-30 (2012) rev’d 134 S. Ct. 1811 (2014).
  161. Town of Greece, 134 S. Ct. at 1824-28.
  162. Id. at 1838 (Thomas, J., concurring in part and concurring in the judgment).
  163. Id. (quoting id. at 1817-18, 1824-25 (majority opinion)). Justice Thomas referred to the Fourteenth Amendment rather than the First because of his views about incorporation. His view is this: because several states actually had established churches at the time the First Amendment was passed, the Framers cannot have intended the Establishment Clause to apply against the states. Therefore, for the Establishment Clause to be incorporated against the states, the Framers of the Fourteenth Amendment would have needed to intend to change the meaning of the Establishment Clause, and Justice Thomas has not yet been convinced that is what happened. See id. at 1835-37.
  164. Id. at 1838.
  165. Elmbrook Sch. Dist. v. Doe, 134 S. Ct. 2283, 2284 (2014) (Scalia, J., dissenting from a denial of certiorari).
  166. Id. The church was chosen because it had enough space and cushioned seats and because it was air-conditioned.
  167. Id.
  168. Town of Greece, 134 S. Ct. at 1824-27.
  169. Id. at 1825.
  170. Id. I disagree with Justice Kennedy. The prayer giver faces and addresses the audience with his or her back to the board members. If the intended audience was the legislators, one would think the prayer giver might face and address the board members instead. Justice Alito would disagree with me on that point; he noted that facing away from the audience “would probably be seen by many as rude.” Id. at 1832 (Alito, J., concurring). Justice Kennedy did not explain why he believed the audience was the legislators rather than the public, other than analogizing the Town’s practice to the practice in Marsh where the audience was the legislators and on Congress’ own prayer practice. Id. at 1825 (majority opinion). In focusing on Marsh and on Congressional prayer, Justice Kennedy mischaracterized the Town’s practice and ignored some important differences between the Town board meetings and state and federal legislative sessions. Id. at 1851 (Kagan, J., dissenting).
  171. Id. at 1826 (majority opinion).
  172. Id. at 1827. This fact allowed Justice Kennedy to distinguish this case from Lee where he found it decisive that the students were, practically speaking, unable to avoid the prayer or express dissatisfaction. See Lee, 505 U.S. at 593.
  173. Town of Greece, 134 S. Ct. at 1827.
  174. See Lee, 505 U.S. at 593. In Lee, the Court disallowed a graduation prayer for reasons including that high school graduations cannot be considered involuntary and that such prayers have inherently coercive effects.
  175. At least, they would agree if they thought the Establishment Clause was properly incorporated against the states. See supra note 161 and accompanying text.
  176. Town of Greece, 134 S. Ct. at 1837-38.
  177. Id.
  178. See id. at 1843-44 (Kagan, J., dissenting) (discussing neutrality principles).
  179. See id. at 1818 (majority opinion) (“Marsh is sometimes described as ‘carving out an exception’ to the Court’s Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to ‘any of the formal “tests” that have traditionally structured’ this inquiry.”).
  180. See, e.g., Van Orden v. Perry, 545 U.S. 677, 687-88 (2005) (“Recognition of the role of God in our Nation’s heritage has also been reflected in our decisions.”).
  181. Town of Greece, 134 S. Ct. at 1819 (emphasis added) (quoting Cnty. of Allegheny, 492 U.S. at 670 (Kennedy, J., concurring in judgment in part and dissenting in part).
  182. Id. (emphasis added).
  183. See Elmbrook Sch. Dist., 134 S. Ct. at 2285 (Scalia, J., dissenting from a denial of certiorari).
  184. See Town of Greece, 134 S. Ct. at 1849 (Kagan, J., dissenting).
  185. Id. at 1845-49.
  186. Id. at 1845.
  187. See generally Van Orden, 545 U.S. at 685 (discussing the advent of the Lemon test and the way the Court quickly moved away from it).
  188. Town of Greece, 134 S. Ct. at 1823.
  189. Id. at 1825.
  190. Id. at 1849 (Kagan, J., dissenting).
  191. Of course, municipalities will also have to decide if participating in religious expression is worth the risk of having to litigate a case all the way to the United States Supreme Court.
  192. See Town of Greece, 134 S. Ct. at 1831 (Alito, J., concurring).