Justice Kennedy is better known for his rhetorical flair that his practical guidance. But his majority opinion in Town of Greece v. Galloway provides a roadmap cities can follow to stay out of trouble when beginning city council meetings with a prayer.
While anyone could give a prayer at a Town of Greece board meeting, from 1999-2007 all pray givers were Christian. Some referred to Jesus in their prayers. The town recruited “board chaplains” from a local directory and nearly all congregations were Christian. Clergy crafted their own messages without any input from the town.
Susan Galloway and Linda Stephens argued that legislative prayer cannot contain sectarian language or themes such as the “death, resurrection, and ascension of the Savior Jesus Christ.” They also argued that prayers before town board meetings “create social pressures that force nonadherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board.” Justice Kennedy’s 5-4 majority opinion rejected both arguments.
In Marsh v. Chambers, in 1983, the Court held the Nebraska Legislature didn’t violate the First Amendment by opening its sessions with a prayer delivered by a chaplain paid from state funds. The proposition that Marsh allows only nonsectarian prayer “is irreconcilable with the facts of Marsh and with its holding and reasoning.” The confusion that Marsh might allow only nonsectarian prayers was caused by a footnote explaining that the chaplain in Marsh stopped referring to Christ after a Jewish state legislator complained. But this footnote, the Court explained, merely observed that the minister was trying to appeal to or not offend those he served.
Now for the first piece of practical advice. The Court warned, sectarian prayers can go too far “[i]f the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”
Galloway and Stephens argued that in terms of coercion, prayer in the town board meeting context is fundamentally different than prayer in the state legislative context because citizens can only address state legislatures by invitation, but citizens often attend town board meetings because they have business before the board. But prayers in both contexts aren’t intended for the public but for the lawmakers “who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.”
Here is the second piece of practical advice: Coercion could be possible though “if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.”
It is noteworthy that this decision will have the biggest impact in the Second Circuit (Connecticut, New York, and Vermont) and the Fourth Circuit (Maryland, Virginia, West Virginia, North Carolina, and South Carolina). The Second Circuit had declared Greece’s prayer practice unconstitutional focusing on the Christian nature of most of the prayers. The Fourth Circuit in 2011 had ruled that only nonsectarian prayer at local board meetings is constitutional.