The Circuit Split
The Town of Greece, New York, had a practice of beginning its public monthly town board meetings with a moment of silence. Starting in 1999, however, the town instituted a short invocational prayer, offered by a local clergyperson. At the time, the town had no formal policy regarding the process for inviting the prayer-givers. The usual practice was that town employees would consult a published community guide that included local religious organizations and would call the groups listed there in their order of appearance until they reached someone who accepted an invitation to offer the prayer. The list was updated regularly. The town stated that anyone could ask to give an invocation, including atheists and the nonreligious, and that it had never rejected such a request. The town also asserted that it did not review the language of a prayer before it was delivered and that it would not censor or regulate the content of an invocation.
It appeared, however, that every invocational prayer made between 1999 through 2007 was Christian, as were the majority of the prayers offered overall. This was likely because religious congregations in the town were primarily Christian. Two residents, Galloway and Stephens, complained to the town, claiming the prayers were sectarian rather than secular, and this aligned the town with Christianity. (It likely didn’t help matters when a prayer delivered at an October 2007 meeting described objectors to the town’s prayer practice as a “minority . . . ignorant of the history of our country.”12). Four months later the two residents sued, challenging aspects of the prayer practice as violative of the Establishment Clause. The gist of their claim was that the prayer practice preferred Christianity and, therefore, “established” a particular religion. The district court, on cross-motions for summary judgment, entered judgment for the defendant town and officials because the plaintiffs failed to advance any credible evidence that town employees intentionally excluded representatives of particular faiths.13
On appeal, in a ruling issued on May 17, 2012, the U.S. Court of Appeals for the Second Circuit reversed, concluding that on the evidence before it, the town’s prayer practice was an endorsement of a particular religious viewpoint and, accordingly, had violated the Establishment Clause.14 In coming to this conclusion, the court considered Marsh v. Chambers. It was incorrect to conclude that “the Establishment Clause precludes all legislative invocations that are denominational in nature”15; likewise, a simple sectarian/nonsectarian approach failed because, under the First Amendment, the government was prohibited from establishing “a vague theism as a state religion any more than it may establish a specific creed.”16 The relevant question was “whether the town’s practice, viewed in its totality by an ordinary, reasonable observer, conveyed the view that the town favored or disfavored certain religious beliefs.”17 The practice in Marsh—the long-standing appointment of a single clergyman—was not, of itself, enough to affiliate the government with any one faith, and the same was “apparently true of ‘Judeo-Christian’ prayers that [made] no reference to Christ.”18 According to the court, where the town crossed the line was that the evidence on several factors showed endorsement of a particular religious viewpoint: the prayer-giver selection process, the content of the prayers, and “the contextual actions (and inactions) of prayer-givers and town officials.”19 Specifically, the town failed to publicly or actively solicit a variety of volunteers, regardless of their religious beliefs or nonbeliefs.20
This decision squares poorly (or not at all) with Marsh on many levels. The court appeared to agree that the town did not intentionally prefer Christian prayer-givers over others, but unlike Marsh, looked to the effect the practice might have on a “reasonable observer.” Marsh directs that the content of prayers is not something the legislative body is to concern itself with, assuming no attempts to disparage or proselytize are made, and it is not an unconstitutional establishment of religion when the prayer-giver is mostly Christian and the prayers may contain sectarian references.
Contrast Galloway with the Ninth Circuit’s decision in Rubin v. City of Lancaster and the Eleventh Circuit’s conclusion in Atheists of Florida, Inc. v. City of Lakeland, both decided on March 26, 2013. Both cases arose out of invocational prayers offered at municipal council meetings on fairly similar facts, and in which the plaintiffs argued, principally, that the majority of invocations had been Christian and resulted in the municipality endorsing a specific religion.
Lancaster, California, adopted a prayer policy in 2009 after an informal period in which a substantial part of the citizen-offered prayers given were Christian. The official policy required the city clerk to use telephone directories and other records to compile a database of religious congregations in the city, without regard to their specific faith, denomination, or religious belief. All were mailed an invitation to participate in an invocational prayer. The letter “requested” that the prayer not be exploited as an effort to convert others or used to disparage any faith or belief. The policy specifically stated it was not intended to affiliate the city council “with, nor express the City Council’s preference for, any faith or religious denomination.” No one who volunteered or asked to pray had been turned away, although each congregation was limited to three prayer opportunities per year. In late 2009, the policy was submitted to municipal voters as a nonbinding measure and was approved.
Two residents sued after attending a council meeting at which a prayer mentioned “Jesus,” arguing that an explicit reference to a sectarian figure was a per se breach of the Establishment Clause. (Before that incident, 20 prayers were Christian and had mentioned Jesus, four were given by a self-identified “metaphysicist,” one was given by a Sikh, and one by a Muslim.) The district court held there was no evidence that the city promoted or discriminated against any particular faith, since it did not regulate prayer content. On appeal, the Ninth Circuit affirmed.21
“[N]either Marsh nor [County of Allegheny v. ACLU, 492 U.S. 573 (1989)] categorically forbids sectarian references in legislative prayer.”22 The plaintiffs had “misread Marsh” in their insistence that a single sectarian reference was one too many, because the Marsh Court evaluated Nebraska’s practice over a significant period of time before concluding that the prayer opportunity had not been cumulatively exploited for proselytizing or other prohibited conduct.23 On the issue of whether the prayer practice, viewed in its entirety, advanced Christianity, the court held the germaine inquiry was not the practice’s “effect on the disapproving listener,” but whether the government had acted in such a way as to give its official approval or support to affiliate itself with Christianity.24 Here, the city had “taken every feasible precaution—short of the extra step (itself fraught with constitutional peril) of requiring volunteers to refrain altogether from referencing sectarian figures—to ensure its own evenhandedness.”25 Efforts were made to ensure diversity and inclusivity, and invitations were scheduled on a neutral first-come, first-served basis. “Whatever the content of the prayers or the denominations of the prayer-givers, the City chooses neither.”26
Likewise, in Atheists of Florida, Inc. v. City of Lakeland,27 the appellate court relied on a broad reading of Marsh, as previously interpreted by the Eleventh Circuit in Pelphrey v. Cobb County, Ga., 547 F. 3d 1263 (11th Cir. 2008).
Between 1951 and 1979, all the prayers in Lakeland were led by invocational speakers of the Christian faith. Between 1980 and 2010, city staff contacted religious leaders on a list that originated in the mayor’s office and invited them to offer the legislative prayer. After the plaintiff group, AOF, complained in 2010 that most of the prayers were Protestant, the city adopted a revised list with several hundred congregations that had not been on the previous list (some 600 in total), and new invitations were sent out. AOF sued, alleging that the city’s practice promoted the Protestant Christian religion over other denominations and religions, and over nonreligion. In response, the city adopted a formal prayer policy, Resolution 4848, which regularized the practice of inviting clergy from the diverse database compiled by city staff. The city would not review the content of any invocation to be offered by an invocation speaker, and the policy expressly stated it was not intended to affiliate the city with any religion. It directed that all meeting agendas include a printed notice that read, in part: “The views or beliefs expressed by the invocation speaker have not been previously reviewed or approved by the Commission, and the Commission is not allowed by law to endorse the religious beliefs or views of this, or any other speaker.” In 2011, the city commission invocations were primarily those of the Christian faith, but at three of the meetings, invocations were delivered by a Muslim speaker and two Jewish speakers. AOF maintained that this failed to address the Establishment Clause violation, as atheists, agnostics, secularists, and humanists were excluded, as were any religions without “congregations.”28 The district court granted Lakeland’s motion for summary judgment regarding its practices for the selection of invocation speakers after Resolution 4848 was adopted.
On appeal, the Eleventh Circuit held the policies and practices did not have the effect of affiliating the city commission with any discrete faith or belief. The city did not review the content of the prayers, nor did it exploit the prayers to advance one faith by using predominantly Christian speakers. The selection process included representatives of diverse faiths, and, while the identities of the invocation speakers were primarily but not exclusively Christian, this reflected the religious makeup of Lakeland and the surrounding county. The challenge to the pre-March 2010 prayer practice was remanded for the district court to dismiss that portion of the challenge as moot.29
Unlike Galloway, these two decisions viewed the fact that most of the invocations had been Christian as a function of local demographics and the interest of religious leaders who responded to the local government’s invitation for volunteers.
Push Me–Pull You
Those of us who read the childhood book about Doctor Dolittle may recall the pushmi-pullyu, a quadruped with a head at each end of its body, which meant it had difficulty getting anywhere. Like that interesting creature, a local government evaluating an appropriate invocational prayer practice may find that the applicable legal objectives tug it in two competing directions. The municipality cannot selectively pick and choose or parse from a list of prayer-givers “to balance things out” lest this appear to be intentionally favoring or rejecting any religion. The speaker cannot use the opportunity to proselytize, or advance or disparage any specific religion, but the municipality likewise cannot instruct the prayer-giver on what to say or how to say it, on pain of violating the Free Speech Clause. Too complicated? Defaulting to a brief request for divine guidance and blessing, devoid of sectarian references and given by a member of council, may still attract litigation: a California school district was recently sued over a sanitized yoga program in an elementary school (the Lotus position had been renamed the “Crisscross-Applesauce” pose) because of claims that the program, based on Ashtunga yoga, impermissibly endorsed Hinduism.30
Why bother having an invocational prayer? “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country,” as Marsh explains.31 Moreover, according to one survey, most Americans still have some form of religious background or affiliation: nearly eight in ten adults (78.4%) belong to various forms of Christianity, and 5% belong to other faiths. About one-sixth (16.1%) of the adult population is not affiliated with any particular religion.32 And while the court rulings discussed above have apparently tended to lump all Christians into one category for the purposes of assessing diversity and inclusiveness, the reality is that “Christian” encompasses many denominations with divergent beliefs and practices. A footnote in the Lakeland decision listed just a few: Assembly of God, Baptist, Catholic, Christian, Chaplains, Church of Christ, Church of God, Episcopal, Lutheran, Methodist, Nazarene, Non-Denominational, Pentecostal, Presbyterian, Seventh-Day Adventist, Salvation Army, and Wesleyan.33
Last, invocational prayers (notwithstanding their sectarian content) “serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions,”34 and are “a tolerable acknowledgment of beliefs widely held among the people of this country.”35
One commentator on an ABA website offered an explanation for keeping prayers out of public meetings:
I don’t know why we would want prayers at legislative meetings even if it was possible to evenly represent the local spectrum of religious preferences. The risks are too great. No matter [whom] the clergyperson delivering the prayer would be, the greatest likelihood would be that the prayers were being offered to the wrong God/gods, and the legislative consequences could well be horrific if the true God/gods turned out to be wrathful . . . .36
Until that lightning bolt strikes, or vengeful fire consumes, or the implacable plague withers, many municipalities will continue to humbly invoke the assistance and blessing of the divine spirit. And when the Supreme Court heard oral arguments in Town of Greece v. Galloway on November 6, the Court began its session with “God save the United States and this honorable court.”
1. U.S. Const. amend. I.
2. Marsh v. Chambers, 463 U.S. 783, 793 (1983).
3. While the text of the prayers is not included in the decisions, the later case of Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998), includes the text of three of the prayers used in the Nebraska Legislature in note 11 on page 1235 of the decision.
4. Marsh, 463 U.S. at 796.
5. Lemon v. Kurtzman, 403 U.S. 602 (1971), requires that (1) the government’s action have a secular legislative purpose; (2) the government’s action not have the primary effect of either advancing or inhibiting religion; and (3) the government’s action not foster an “excessive government entanglement” with religion. Id. at 612–13.
6. 463 U.S. at 790.
7. Id. at 788.
8. Id. at 792.
9. 463 U.S. at 795–96.
10. Id. at 794–95.
11. Galloway v. Town of Greece, 681 F.3d 20, 25 (2d Cir. 2012), cert. granted, 133 S. Ct. 2388 (2013) (No. 12-696); Rubin v. City of Lancaster, 710 F. 3d 1087 (9th Cir. 2013); Atheists of Florida, Inc. v. City of Lakeland, 713 F. 3d 577 (11th Cir. 2013).
12. Galloway v. Town of Greece, 681 F.3d 20, 25 (2d Cir. 2012).
13. Galloway v. Town of Greece, 732 F. Supp. 2d 195 (W.D.N.Y. 2010).
14. 681 F.3d at 30.
15. 681 F.3d at 28.
16. Id. at 29.
18. Id. at 30.
20. Id. at 31.
21. Rubin v. City of Lancaster, 710 F.3d 1087 (9th Cir. 2013).
22. Id. at 1094.
23. Id. at 1092–93.
24. Id. at 1096.
25. Id. at 1097.
26. Id. at 1098.
27. 713 F.3d 577 (11th Cir. 2013).
28. According to the Ninth Circuit, however, “the record shows that the practice followed before March 2010 of not selecting speakers who were not Christians ended prior to the date AOF filed this action.” Id. at 595.
29. Interestingly, an amicus brief filed for members of Congress and the Family Research Council raised the argument that the legislative prayer practice at issue was immune from suit under legislative immunity, and was also nonjusticiable under the political question doctrine. The Eleventh Circuit did not address these arguments. Brief of Amici Curiae Members of Congress et al. at 11‒21, Atheists of Florida, Inc. v. City of Lakeland, 713 F.3d 577 (11th Cir. 2013) (No. 12-11613) (The brief is available at http://forbes.house.gov/uploadedfiles/final_atheists_of_fla_v__city_of_lakeland.pdf).
30. See Mark L. Movsesian, More on Yoga in the Public Schools, Center for Law and Religion Forum, Aug. 9, 2013, at http://clrforum.org/2013/08/09/more-on-yoga-in-the-public-schools (last visited Sept. 18, 2013).
31. Marsh v. Chambers, 463 U.S. 783, 786 (1983).
32. Pew Forum on Religion & Public Life, U.S. Religious Landscape Survey (Feb. 2008) (full report here http://religions.pewforum.org/pdf/report-religious-landscape-study-full.pdf).
33. 713 F. 3d 577, 581 n.1 (11th Cir. 2013).
34. Brief of Amicus Curiae United States at 27, Town of Greece v. Galloway, 681 F.3d 20 (2d Cir. 2012), cert. granted, 133 S. Ct. 2388 (2013) (No. 12-696), citing Elk Grove Unified Sch. Dist. v. Newdow, 541 U.S. 1, 36 (O’Connor, J., concurring in the judgment).
35. Marsh, 463 U.S. at 792.
36. Online comment by NoleLaw on article, Debra Cassens Weiss, Uncensored Clergy Prayers Should Be Allowed Before Town Meetings, 23 States Argue in SCOTUS Brief, ABA Journal, Aug, 6, 2013 at www.abajournal.com/news/article/uncensored_citizen_prayers_should_be_allowed_before_town_meetings_23_states/?utm_source=maestro&utm_medium=email&utm_campaign=daily_email.