In Town of Greece v. Galloway, the Supreme Court held that a city council may begin its sessions with a ceremonial prayer. Plaintiffs did not object to the prayers but argued they must be nonsectarian, not identifiable with any one religion. The Court, following the precedent and long historical practice of sectarian prayers in Congress rejected that argument: “An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases.”
The initial reaction in the media has been that this decision is a major defeat for those who fear the establishment of religion or a major religious victory for those who support such prayers. In actuality, this decision fits solidly within the precedent and does not expand it. The majority correctly recognized that the four-person dissent, while accepting the precedent, would have empowered government officials to edit prayers, the last thing courts should do.
First, some background. In 1943, the Court in West Virginia State Board of Education v. Barnette invalidated a law requiring schoolchildren to recite the Pledge of Allegiance and to salute the American Flag. The plaintiffs were Jehovah’s Witnesses, who regarded the pledge as worshiping false gods. However, the Court did not decide the case on the basis of the Establishment Clause or the Free Exercise Clause. Instead, it relied on the Free Speech Clause. The Witnesses may believe the flag is a graven image, but the Court considered the pledge a secular exercise. The holding, the Court said, did not really “turn on one’s possession of particular religious views or the sincerity with which they are held. While religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual.”
In a democracy, the state may not compel the salute. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Compelling the salute and pledge “invades the sphere of intellect and spirit,” and free speech protects that. Hence, a school could offer a pledge but could not require any student to participate.
In contrast, a public school may not even offer a prayer to start the school day. Praying is a religious activity, and the state may not sponsor it. Thus, the state cannot start off the school day by reading, “without comment,” several versus from the Bible, even though the law provided that any child “shall be excused” if the parents request. The prayer, unlike a pledge, is a religious exercise, as the Court recognized in School District of Abington Township v. Schempp (1963). It does not matter if the prayer is nonsectarian. In Engel v. Vitale (1962), a state official composed a nondenominational prayer, but “it is no part of the business of government to compose official prayers.” The Establishment Clause violation is government providing a religious exercise. It does not cure the violation if the government allows the students to opt-out.
Later, the Court invalidated a state law that provided a moment of silence “for meditation or voluntary prayer,” because the law was “entirely motivated by a purpose to advance religion.” That same case, Wallace v. Jaffree (1985) had no problem with another state law that required a simple “period of silence, not to exceed one minute.” During that time, students could pray in silence (or daydream) but the silence was not part of an official religious exercise. The Court later held in Lee v. Weisman (1992) that the public school could not offer a “nonsectarian” benediction or prayer at official graduation ceremonies. Students did not have to attend the ceremonies, but the state simply cannot provide this religious exercise.
Subsequently, in Santa Fe Independent School District v. Doe (2000) the Court held that the state could not set up a procedure where students picked a student to deliver a “nonsectarian, non-proselytizing prayer” at the beginning of each football game. Because the school policy “explicitly and implicitly” encouraged public prayer, the “resulting religious message under this policy would be attributable to the school, not just the student.” This was not a private prayer. This line of decisions does not prevent students from praying on their own. As long as schools require exams, students will pray, but it cannot be part of an official exercise.
Then came Marsh v. Chambers (1983). This time, the Court held that there was no violation of the Establishment Clause when the Nebraska legislature began each of its sessions with a prayer. Three facts are particularly important. First, the “clergyman of only one denomination—Presbyterian—has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo-Christian tradition.” A member of the Nebraska legislature objected, but the Court upheld the prayer—notwithstanding all the school prayer cases—for one primary reason: a long, consistent, historical practice, a “unique history.”
For example, the Continental Congress, beginning in 1774, opened its sessions with a prayer offered by a paid chaplain. As one of its first items of business, each House of the First Congress selected a chaplain to open each session with prayer. On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, Congress reached final agreement on the language of the Bill of Rights. “It can hardly be thought that, in the same week, Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable.” This “unbroken practice for two centuries in the National Congress and for more than a century in Nebraska and in many other states,” led the Court to allow legislatures to have prayers.
The Court did not consider the content of the Nebraska prayers although it did note that they were in the Judeo-Christian tradition. “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. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.”
Marsh really decides Town of Greece v. Galloway. Justice Kennedy, who wrote the opinion of the Court in Lee v. Weisman, and joined the majority in Santa Fe Independent School District v. Doe, also wrote the Court’s opinion in Galloway.
The dissents in Galloway embraced Marsh v. Chamber as the law. Breyer’s dissent conceded that the plaintiffs “do not argue that the town intentionally discriminated against non-Christians when choosing whom to invite.” He noted, “the town claims, plausibly, that it would have allowed anyone who asked to give an invocation to do so.” Kagan, in her dissent, joined by Ginsburg, Breyer, and Sotomayor, made clear, “I agree with the Court’s decision in Marsh v. Chambers.”
Kennedy criticized the dissent’s objection to the list of clergy. Kagan argued that what the town board did would have been constitutional if it had “invited clergy of many faiths to serve as chaplains.” If, in one month, “a clergy member refers to Jesus, and the next to Allah or Jehovah,” then “the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed.” Kennedy replied that if this “rotating system” is constitutional, then Kagan’s quarrel “really boils down to this: The town’s clerical employees did a bad job in compiling the list of potential guest chaplains.” Greece’s clerical employee drew up her list using the directory of the town of Greece, not a directory covering the entire greater Rochester area. “If the task of putting together the list had been handled in a more sophisticated way, the employee in charge would have realized that the town’s Jewish residents attended synagogues on the Rochester side of the border and would have added one or more synagogues to the list. But the mistake was at worst careless, and it was not done with a discriminatory intent. (I would view this case very differently if the omission of these synagogues were intentional.)”
Kagan also argued that if the “Town Board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups,” then there would be no objection. However, that is not the history of chaplains in Congress. For example, in 1860, when a rabbi delivered a prayer in the House of Representatives, he appeared “in full rabbinic dress, ‘piously bedecked in a white tallit and a large velvet skullcap,’ ” and his prayer “invoked several uniquely Jewish themes and repeated the Biblical priestly blessing in Hebrew.” One of the Senate’s first chaplains, Rev. William White, gave prayers for Ash Wednesday and prayed seeking “the grace of our Lord Jesus Christ.”
While the town could always recommend that the guest chaplain deliver a generic prayer, to say the town must censor the person who gives the benediction would raise a host of other problems. “Must a town screen and, if necessary, edit prayers before they are given?” The government should not compose prayers—the lesson of Engel v. Vitale (1962)—nor should it censor them.
Given the fact that all nine Justices embraced the precedent of Marsh v. Chambers, one wonders what the fuss is all about. It is late in our history to exclude all references to God. When the President takes the oath of office (Article II, Section 1, Clause 8 specifies the exact language), the President typically puts his left hand on the Bible. Barack Obama, Dwight D. Eisenhower, Harry S. Truman, Richard Nixon, and other presidents all swore on the Bible. The Constitution says nothing about that. Many Presidents (perhaps going back to President Washington and including Barrack Obama) have added “so help me God” to the end of the oath. That also is not in the Constitutional oath.
The day after Congress proposed the First Amendment, Congress urged President Washington to proclaim “a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.” Where the Supreme Court heard oral arguments in Galloway, we see Moses with Ten Commandments, portrayed in the south frieze. A statue of the Apostle Paul overlooks the rotunda of the Library of Congress. On the apex of the Washington Monument we find inscribed, “Laus Deo” (“Praise be to God”). The list can go on.
Granted that there are those who think the government should not put its prestige behind religion. However, people of faith do not believe that God needs the government’s prestige. As for people without faith, it is hard to conclude that any atheist will feel pressured to change his or her views because of what the Town Board of Greece thinks.