The Long and Winding Road of the
Establishment Clause Jurisprudence from Jeffersonian strict separation of
church and state to the modern coercion test.
TABLE OF CONTENTS
Introduction
I. The Role, History, and Major
Theories of Interpretation of the Establishment Clause
A. The Role and
Purpose of the Establishment Clause
B. The History of
Interpreting the Establishment Clause
C. The Lemon, Endorsement, and Accommodation
Tests
II. Religion as Part of Government
Activities
A. Town of Greece v. Galloway
B. The History of
Legislative Prayer
C. Marsh v. Chambers
D. Legislative
Prayer after Marsh v. Chambers and
Lower Courts’ Struggles
III. Marching Forward after Town of Greece v. Galloway
A.
Galloway and the Establishment Clause
approaches
B.
Galloway is
Distinct from Marsh
C.
The World after Galloway
Conclusion
“By
enforcing the Clauses, we have kept religion a matter for the individual
conscience, not for the prosecutor or bureaucrat. At a time when we see around
the world the violent consequences of the assumption of religious authority by
government, Americans may count themselves fortunate: Our regard for
constitutional boundaries has protected us from similar travails, while allowing
private religious exercise to flourish.”
McCreary
Cnty., Ky. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844, 882 (2005) (O’Connor, J., concurring).
Introduction
The Establishment Clause has been in the
spotlight again. A relatively recent
initiative of a town supervisor in a small suburb near Rochester, New York, to
commence town board meetings with a prayer steered substantial controversy and
percolated all the way to the Supreme Court at the end of 2012. The Court listened to the parties’ oral
arguments in Town of Greece v. Galloway[1]
in November 2013, and the Justices just have announced a highly anticipated
decision in this case. Consisting of the
majority decision, two concurrences and two dissents, this complex opinion certainly
appends a new twist in the long and winding road of the Establishment Clause
jurisprudence from the Jeffersonian strict separation of church and state model
to the modern coercion test.
This paper discusses the evolving Establishment
Clause jurisprudence and the latest Supreme Court controversy in Town of Greece v. Galloway,[2]
where a small town supervisor instituted a practice of prayer invocation at the
beginning of each town board meeting in 1999. Galloway
raised several important questions. Among
those questions, the Justices had to decide whether or not regular town
residents in towns, like the Town of Greece, could reasonably defy the state’s
coercive efforts when they attend local board meetings to address decision
makers. The Court also faced the follow-up
question as to whether ordinary citizens risk alienating local policy makers if
they refuse to join in prayers.
Since the Supreme Court upheld Nebraska
Legislature's 128–year–old practice of opening its sessions with a prayer
offered by a chaplain in Marsh v.
Chambers[3] in 1983, legislative prayer has grown into a
fissure that now divides county boards, state legislatures, and city councils
across the country.[4] Some of these disputes have changed the
course of elections; others have led to violence.[5] Relying on a thirty-year-old precedent of Marsh, the Justices in Galloway applied the historic tradition
of legislative prayer to a small town board council. At first blush, it is admirable that local
legislative bodies wish to emulate the Congress’s prayer practice. However, the carefully maintained
congressional custom may not be appropriate in many local governmental
circumstances, which are one step removed from local school boards and often
have regular citizens and children present during meetings. The paper suggests that the emulation of the
two-hundred-year-old congressional custom of legislative prayer is not proper
and appropriate in many local governmental contexts, where councils serve both
adjudicative and legislative functions and where the audience comprises regular
citizens and children.
The paper proceeds in three parts. Part I describes the role, purpose, and history
of the Establishment Clause and its major theories and approaches. Part II analyzes Town of Greece v. Galloway and
the history of legislative prayer. It also focuses on a salient case in this
area, Marsh v. Chambers, and the post-Marsh controversies. Finally, Part III discusses the lessons of Galloway and the separation between church and state
in the twenty-first century after Galloway. Part III also suggests that legislative prayer is not suitable at
town board meetings in towns, like the Town of Greece.
I.
The
Role, History, and Major Theories of Interpretation of the Establishment Clause
Introduced by James Madison and adopted
two years after the adoption of the Constitution, the First Amendment shines as
one of the brightest stars in the Bill of Rights’ constellation. As a shining star, the First Amendment
immediately directs our attention to religion and the importance of religious
freedom in the United States. The amendment
begins: “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.” Constitutional
scholars, judges, and lawyers refer to the first two clauses as the
Establishment Clause and the Free Exercise Clause, respectively. Even though the Framers conferred the
Establishment Clause the front row seat among other clauses of the First
Amendment,[6]
the Supreme Court uncovered it and gave birth to the modern Establishment
Clause jurisprudence only in 1947, more than one hundred fifty years after the
adoption of the Bill of Rights.[7]
The following section, Section A,
discusses the role and purpose of the Establishment Clause. Section B analyzes the history of
interpreting the Clause, and Section C describes three dominant tests: the Lemon, endorsement, and Accommodation
tests.
A. The
Role and Purpose of the Establishment Clause
To fully understand the Establishment
Clause jurisprudence in the twenty-first century, we have to look back and
examine the history behind the drafting of the First Amendment: “[W]e cannot understand our ongoing
history—where we are heading—without reference to where we have come from.”[8] When the Supreme Court gave birth to the
modern Establishment Clause in 1947, it understood the essential importance of
giving reasons for the separation of church and state.[9] In Everson v. Board of Education of Ewing
Twp.,[10]
Justice Hugo Black, writing for the
majority, declared: “The ‘establishment of religion’ clause of the First
Amendment means at least this: Neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid one religion, aid all
religions, or prefer one religion over another.’”[11] Justice Black further expounded that
government cannot compel or influence a person to go to or to remain away from
church against his will or force the person to profess belief in any religion.[12] Further, “neither a state nor the Federal
Government can, openly or secretly, participate in the affairs of any religious
organizations or groups and vice versa.”[13]
According to Jefferson, the Establishment
Clause intention was to erect “a wall of separation between Church and State.”[14]
In addition, Justice Black emphasized
that the wall must be “kept high and impregnable.”[15]
Everson
made its mark by being first to incorporate the Establishment Clause to the
states. It upheld a state’s legislation
that provided a general program to “help
parents get their children, regardless of their religion, safely and
expeditiously to and from accredited schools.”[16] In doing so, the Court gave a comprehensive
review of the “background and environment of the period in which that
constitutional language was fashioned and adopted.”[17]
It stated that “[a] large proportion of
the early settlers of this country came here from Europe to escape the bondage
of laws which compelled them to support and attend government favored churches.”[18]
The
Everson opinion portrayed the
troubling history of persecution of one religious sect by another in Europe the
centuries immediately before and around the colonization of America.[19]
Those European governments would inflict
punishment for such offenses “as speaking disrespectfully of the views of
ministers of government-established churches, nonattendance at those churches,
expressions of non-belief in their doctrines, and failure to pay taxes and
tithes to support them.”[20]
These
practices of the old world were transplanted to America, where people of “varied faiths who happened to be in
a minority in a particular locality were persecuted because they steadfastly
persisted in worshipping God only as their own consciences dictated.”[21] However, the colonies compelled to pay “tithes
and taxes to support government-sponsored churches whose ministers preached
inflammatory sermons designed to strengthen and consolidate the established
faith by generating a burning hatred against dissenters.”[22]
According
to the majority in Everson, the colonial
practice to impose taxes to pay ministers' salaries and to build and maintain
churches and church property aroused feelings of indignation among the
colonists.[23] These feelings became the impetus for
drafting of the First Amendment. People
came to the conclusion that “individual religious liberty could be achieved
best under a government which was stripped of all power to tax, to support, or
otherwise to assist any or all religions, or to interfere with the beliefs of
any religious individual or group.”[24] When the Virginia legislative body was about
to renew Virginia's tax levy for the support of the established church in
1785-86, the movement against the established church reached its climax.[25]
Both Thomas Jefferson and James Madison
led the fight against the church tax.[26]
In 1785, Madison wrote his great
Memorial and Remonstrance against the law, where he argued that “a true
religion did not need the support of law; that no person, either believer or
non-believer, should be taxed to support a religious institution of any kind;
that the best interest of a society required that the minds of men always be
wholly free; and that cruel persecutions were the inevitable result of
government-established religions.”[27]
Madison's Remonstrance not only killed the proposed tax measure but also became
a driving force behind the enactment of the famous “Virginia Bill for Religious
Liberty” originally written by Thomas Jefferson.[28]
Since Madison and Jefferson played
leading roles in the drafting and adoption of the provisions of the First Amendment,
these provisions had the same objective and were intended to provide the same
protection against governmental intrusion on religious liberty as the Virginia
statute.[29]
The
Court reiterated the paramount importance of the wall of separation between Church
and State a year from its Everson
ruling. It stated that “the First
Amendment rests upon the premise that both religion and government can best
work to achieve their lofty aims if each is left free from the other within its
respective sphere.”[30]
Further, not only the
Establishment Clause provides a major check on the government’s encroachment on
individual liberty, but it also serves, together with the Free Exercise Clause,
as a co-guarantor of religious liberty.[31]
As Justice Brennan stressed, the Framers did not entrust the liberty of
religious beliefs to either clause alone.[32]
B. The
History of Interpreting the Establishment Clause
Delving into the history of the First
Amendment to establish the “true meaning of the Establishment Clause,” some legal
scholars and judges disagree with Justice Black’s interpretation of the origin
of the Clause in Everson.[33] In his dissent in Wallace v. Jaffree, Justice Rehnquist proclaimed that the Framers intended the
Establishment Clause to prohibit the designation of any church as a “national”
one and “to stop the Federal Government from asserting a preference for one
religious denomination or sect over others.”[34]
He further stated that the history
abundantly shows that “nothing in the Establishment Clause requires government
to be strictly neutral between religion and irreligion.”[35]
Justice Rehnquist also noted that the Clause
does not prohibit Congress or the States from “pursuing legitimate secular ends
through nondiscriminatory sectarian means.”[36]
Furthermore,
Chief Justice Roberts, writing for the majority in Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. E.E.O.C.,[37]
described controversies between church and state in England that had brought
many immigrants to the New World: “Seeking to escape the control of the
national church, the Puritans fled to New England, where they hoped to elect
their own ministers and establish their own modes of worship.”[38]
For instance, William Penn, the Quaker proprietor of Pennsylvania and Delaware,
sought independence from the Church of England.[39] By contrast, colonists in the South brought
the Church of England with them.[40]
However, even they sometimes “chafed at
the control exercised by the Crown and its representatives over religious
offices.”[41] Chief Justice Roberts noted that “[i]t was
against this background that the First Amendment was adopted.”[42]
He stated: “Familiar with life under the
established Church of England, the founding generation sought to foreclose the
possibility of a national church.”[43]
Examining the history of the Clause, it
is important to acknowledge that there are three distinct schools of thought
among the Framers as to the proper relationship between religion and the
government: the evangelical view, the Jeffersonian view, and the Madisonian view.[44] The evangelical view, espoused by Roger
Williams, states that “worldly corruptions … might consume the churches if
sturdy fences against the wilderness were not maintained.”[45] The Jeffersonian view notes that the church
should be walled off from the state in order to safeguard secular interests
(public and private) “against ecclesiastical depredations and incursions.” [46] Jefferson also believed that all religions share a common
morality which is essential to the welfare of any society, and that, more
specifically, America needed religion to give it the necessary inner strength
to survive.[47] The First Amendment, Jefferson said, was an
“experiment,” designed to test whether religion could flourish in America without
government support.[48]
He was confident that it could, and that
its ability to do so was essential to the maintenance of peace and order.[49]
The Madisonian view declares that
religious and secular interests alike would be advanced best by diffusing and
decentralized power so as to assure competition among sects rather than
dominance by any one.[50] Roger Williams was primarily concerned that
government involvement with religion would corrupt and undermine religion,
whereas Thomas Jefferson had the opposite fear that religion would corrupt and
undermine the government.[51] Meanwhile, James Madison saw religion as one
among many types of factions that existed and that needed to be preserved.[52]
A generation of the Supreme Court’s Justices
has referred to the principles endorsed by the three schools of thought, and
these principles also serve as a foundation for some of the modern Establishment
Clause tests.
C.
The Lemon, Endorsement, and Accommodation Tests
Influenced by the Framers’ three schools
of thought and unique American history, the Supreme Court’s Justices of the
twentieth and twenty-first centuries have endorsed three major competing
approaches to the Establishment Clause.[53] The first approach, the Strict Separation,
states that to the greatest extent possible, government and religion should be
separated.[54] This approach relies on the Jeffersonian
ideas and is best illustrated in Everson
v. Board of Education.[55] The Justices, who support the strict
separation approach, favor the Lemon
test.[56] Decided in 1971, Lemon v. Kurtzman,[57]
held that Pennsylvania
and Rhode Island statutes providing state aid to church-related elementary and
secondary schools were unconstitutional.
Lemon established
a very dominant three-prong test that has been still applied by lower
courts. First, it states that “the statute must have a secular
legislative purpose.”[58]
Second, the statute’s “principal or primary effect must be one that neither
advances nor inhibits religion.”[59]
Finally, “the statute must not foster ‘an excessive government
entanglement with religion.’”[60] In Lemon,
the Court concluded that “the cumulative impact of the entire relationship
arising under the statutes in each State involves excessive entanglement
between government and religion.”[61]
A
second major approach to the Establishment Clause states that the government
must be neutral on religion so that it cannot favor religion over secularism or
one religion over others. [62] Several Supreme Court Justices have advanced
a “symbolic endorsement” test in evaluating the neutrality of a government’s
action.[63] Under this approach, the government
contravenes the Establishment Clause if it symbolically endorses a particular
religion or endorses religion over secularism.[64] Justice O’Connor started formulating the endorsement
test in Lynch v. Donnelly.[65] She stated in her concurrence: “Every
government practice must be judged in its unique circumstances to determine
whether it constitutes an endorsement or disapproval of religion. In making
that determination, courts must keep in mind both the fundamental place held by
the Establishment Clause in our constitutional scheme and the myriad, subtle
ways in which Establishment Clause values can be eroded.”[66] Justice O’Connor recognized that besides
having excessive entanglement with religious institutions, government may
violate the Establishment Clause through its “endorsement or disapproval of
religion.”[67] She stated: “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.”[68]
The
Accommodation approach is the third major approach. Under this approach, the Court should
interpret the Establishment Clause to recognize the importance of religion in
society and to accommodate its presence in government institutions.[69] Justice Kennedy formulated the coercion test
used by the supporters of the Accommodation approach. He announced:” Our cases disclose two
limiting principles: government may not coerce anyone to support or participate
in any religion or its exercise; and it may not, in the guise of avoiding
hostility or callous indifference, give direct benefits to religion in such a degree
that it in fact ‘establishes a [state] religion or religious faith, or tends to
do so.’”[70] He continued:” These two principles, while
distinct, are not unrelated, for it would be difficult indeed to establish a
religion without some measure of more or less subtle coercion, be it in the
form of taxation to supply the substantial benefits that would sustain a
state-established faith, direct compulsion to observance, or governmental
exhortation to religiosity that amounts in fact to proselytizing.”[71] In addition, he emphasized that “[t]he
ability of the organized community to recognize and accommodate religion in a
society with a pervasive public sector requires diligent observance of the
border between accommodation and establishment.”[72] Justice Kennedy also spoke of the
Accommodation approach and its primary coercion test in Lee v. Weisman.[73] Lee held
that including clerical members who offer prayers as part of the official
school graduation ceremony violates the Establishment Clause of the First Amendment.[74]
Justice
Scalia has also advocated the Accommodation approach, but he defined it much
more narrowly than Justice Kennedy.[75] Justice Scalia stated: “The coercion that was
a hallmark of historical establishments of religion was coercion of religious
orthodoxy and of financial support by force of law and threat of penalty.”[76]
He continued that attendance at the
state church was generally required.[77]
These
three dominant tests have been used by the parties, courts, and amici curiae in the latest Establishment
Clause controversy, Town of Greece v.
Galloway. The next part discusses
the case itself, the history of legislative prayer, a seminal case in the area
of legislative prayer, Marsh v. Chambers,
and the state of legislative prayer after Marsh.
II.
Religion
as Part of Government Activities
A.
Town
of Greece v. Galloway
After its birth more than sixty years
ago, the specter of the Establishment Clause jurisprudence has been continuously
floating in the air. Cloaked in the
legislative prayer controversy, it recently reappeared in the Town of Greece, which is a
municipal corporation located in Monroe County, New York, just outside the city
of Rochester.[78] An elected, five-member Town Board governs the
town and conducts official business at monthly public meetings.[79]
At these meetings, the Board votes on
proposed ordinances, conducts public hearings, bestows citizenship awards, and swears
in new town employees.[80]
Residents and town employees attend Town
Board meetings to monitor and participate in these aspects of town governance.[81] Sometimes children are among the residents
attending town meetings; members of Boy Scout troops and other student groups
have led the Pledge of Allegiance, and high school students may fulfill a
state-mandated civics requirement necessary for graduation by going to Board
meetings.[82]
Before
1999, Town Board meetings began with a moment of silence.[83]
Later, Town Supervisor, John Auberger,
decided to commence meetings with a legislative prayer by inviting local clergy
to offer an opening prayer.[84]
Since 1999, a typical town board meeting
proceeded this way.[85] First, Auberger has called each meeting to
order.[86] Second, the Town Clerk has called the roll of
Board members.[87] Then, Auberger has asked the audience to rise
for the Pledge of Allegiance.[88]
After the audience has been seated
following the Pledge, Auberger has introduced the month's prayer-giver, who has
delivered the prayer over the Board's public address system.[89]
Prayer-givers have often asked members
of the audience to participate by bowing their heads, standing, or joining in
the prayer.[90] After the prayer's conclusion, Auberger has
typically thanked prayer-givers for being the town's “chaplain of the month,”
at times also presenting them with a plaque.[91]
The town has consistently listed the
prayer in each meeting's official minutes.[92]
From
1999 through 2007, Christian clergy members have delivered nearly all of the
prayers.[93] In 2008, two town residents, Susan Galloway
and Linda Stephens, brought suit against the town and Town Supervisor, John
Auberger, in the United States District Court for the Western District of New
York, asserting that aspects of this prayer practice violated the Establishment
Clause.[94]
In 2008, after Galloway and Stephens had
begun complaining to the town about its prayer practice, non-Christians
delivered the prayer at four of the twelve Town Board meetings.[95]
A Wiccan priestess and the chairman of the local Baha'i congregation each
delivered one of these prayers, and a lay Jewish man delivered the remaining
two prayers.[96]
However, between January 2009 and June 2010, all the prayer-givers were once
again invited Christian clergy.[97]
Overall,
there were roughly 130 different invocations between 1999 and June 2010, of
which more than 120 are contained within the record.[98] A substantial majority of the prayers in the
record contained uniquely Christian language. Roughly two-thirds contained references to
“Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.”[99]
Plaintiffs in this suit, Galloway and
Stephens, attended numerous Town Board meetings after the town initiated its
prayer practice in 1999.[100]
In September 2007, they began
complaining to town officials about the prayer practice, sometimes during
public comment periods at Board meetings.[101]
In 2008, the plaintiffs filed suit against
the town and Auberger, challenging aspects of the prayer practice under the
Establishment Clause.[102] In their complaint, plaintiffs contended that
the Town Board had publicly aligned itself with a single faith by sponsoring
persistently sectarian and almost exclusively Christian prayers.[103] According to plaintiffs, the Board sent the
message to non-Christians that they were unwelcome at Board meetings and that
the Board did not represent non-Christian's concerns.[104] Further, they alleged that the defendants' practices
of favoring Christian clergy and prayers at Town Board meetings have the
purpose and effect of promoting, advancing, favoring, and endorsing the
Christian religion, and have a coercive effect on children present at Town
Board meetings.[105] The plaintiffs contended that these practices
convey the message that the Christian religion is favored or preferred by the
Town over other religions and over nonreligion.[106]
They also alleged that the practices
send the message to adherents of the Christian religion that they are political
insiders, and simultaneously send the message to non-Christians that they are
political outsiders.[107]
In response, the defendants maintained that
sectarian prayer is permissible if it is not exploited to proselytize,
disparage, or advance a particular religion.[108] On cross-motions for summary judgment, the District Court held that neither the
town’s procedure for selecting clergy nor its practice of opening board
meetings with prayer violated the Establishment Clause by the Town Board.[109] On appeal, the Second Circuit reversed and
remanded. It concluded that the town's prayer
practice must be viewed as an endorsement of a particular religious viewpoint.[110]
The
town appealed, and the United States Supreme Court granted petition for writ of
certiorari to the United States Court of Appeals for the Second Circuit and
heard the oral arguments in the matter in November 2012. The following spring, the
Court has issued a divided five-to-four opinion, which was even further split
in Part II-B.[111] The Court held that the Town of Greece’s
practice to open its monthly board meetings with a prayer is consistent with
the Court’s opinion in Marsh v. Chambers,[112]
and it does not violate the Constitution.[113] Justice Kennedy, writing for the majority of
the Court, began his analysis with Marsh. He emphasized that Marsh stands for the
proposition that it is not necessary to define the precise boundary of the
Establishment Clause where history shows that the specific practice is
permitted.[114] Further, he claimed that Marsh had explained that “[a]s practiced by Congress since the
framing of the Constitution, legislative prayer lends gravity to public
business, reminds lawmakers to transcend petty differences in pursuit of a
higher purpose, and expresses a common aspiration to a just and peaceful
society.”[115] The
majority stressed that Marsh had found
the traditional, formal Establishment Clause tests unnecessary because “history
supported the conclusion that legislative invocations are compatible with the
Establishment Clause.”[116]
Relying on his concurrence in County of
Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter,[117]
Justice Kennedy pointed out that Marsh
“teaches instead that the Establishment Clause must be interpreted ‘by
reference to historical practices and understandings.’"[118]
After
reexamining Marsh, the Court went on
to determine whether the prayer practice in the Town of Greece fits within the
tradition long followed in Congress and the state legislatures.[119]
The Court first addressed the respondents’ contention that the prayer must be
nonsectarian or not identifiable with any one religion.[120]
Looking at Congress as an example of a permissible legislative prayer practice,
the Court stated that Congress allows its appointed and visiting chaplains to
express themselves in a religious idiom.[121]
Justice Kennedy continued that Congress “acknowledges our growing diversity not by
proscribing sectarian content but by welcoming ministers of many creeds.”[122]
At this junction, the majority disagreed with a prior interpretation of Marsh in dictum in County of Allegheny,[123]
which had stated that legislative prayer must be generic or nonsectarian.[124]
Justice Kennedy stressed out that this
proposition is “irreconcilable with the facts of Marsh and with its
holding and reasoning.”[125]
The Court stated that Marsh did not suggest that “the constitutionality
of legislative prayer turns on the neutrality of its content.”[126] The Court noted that Marsh had instructed that the "content of the prayer is not of
concern to judges," provided "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."[127] The majority explained that the imposition of
nonsectarian prayer would compel the legislatures to “act as supervisors and
censors of religious speech.”[128] This practice would inevitably lead to the
Government’s involvement in religious matters and might establish “an official
or civic religion as a means of avoiding the
establishment of a religion with more specific creeds.”[129]
The majority stated that once government
“invites prayer into the public sphere, government must permit a
prayer giver to address his or her own God or gods as conscience dictates,
unfettered by what an administrator or judge considers to be nonsectarian.”[130]
Rejecting the suggestion
that legislative prayer must be nonsectarian, Galloway set parameters of legislative prayer to guide lower courts
and legislative bodies.[131] First, legislative prayer must be at the
opening of legislative sessions to “lend gravity to the occasion and reflect
values long part of the Nation’s heritage.”[132] Second, prayer must be “solemn and respectful
in tone” and should “invite lawmakers to reflect upon shared ideals and common
ends before they embark on the fractious business of governing.”[133] Third, the invocations should not “denigrate
nonbelievers or religious minorities, threaten damnation, or preach
conversion.”[134] Fourth, prayer that reflects beliefs specific
to only some creeds can still serve to solemnize the occasion, so long as the
practice over time is not “exploited to proselytize or advance any one, or to
disparage any other, faith or belief.”[135]
Attempting
to establish guidelines for an appropriate legislative prayer practice, Galloway found a common denominator in
Congress’s prayers. Justice Kennedy
stated that they have “commonality of theme and tone.”[136] Varying in their degree of religiosity,
Congress’s prayers “often seek peace for the
Nation, wisdom for its lawmakers, and justice for its people, values that count
as universal and that are embodied not only in religious traditions, but in our
founding documents and laws.”[137] Looking back at the history of legislative
prayer, Justice Kennedy stated that the “ceremonial prayers strive for the idea
that people of many faiths may be united in a community of tolerance and
devotion.”[138] He further notes that “adult citizens, firm
in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer
delivered by a person of a different faith.”[139]
After setting the guidelines
of legislative prayer, Galloway
explained what type of invocation would constitute a constitutional violation: “Absent
a pattern of prayers that over time denigrate, proselytize, or betray an
impermissible government purpose, a challenge based solely on the content of a
prayer will not likely establish a constitutional violation.”[140]
The Court also stated that the
“reasonable efforts” standard is sufficient when a legislative body tries to
maintain nondiscriminatory policy and invites members of clergy within its town
borders.[141]
In Part II-B of the majority opinion,
which was joined by two other Justices, Justice Kennedy addressed the
respondents’ contention that the town’s practice is different from the
tradition upheld in Marsh because it
coerces participation by non-adherents.[142] Being one of the proponents of the
Accommodation theory and the coercion test,[143]
Justice Kennedy turned to the coercion test again in Galloway. Back in Lee v. Weisman, he stated:” The principle that government may
accommodate the free exercise of religion does not supersede the fundamental
limitations imposed by the Establishment Clause, which guarantees at a minimum
that a government may not coerce anyone to support or participate in religion
or its exercise, or otherwise act in a way which “establishes a [state]
religion or religious faith, or tends to do so.”[144]
In Galloway,
Justice Kennedy revisited the coercion test: ”It is an elemental First Amendment principle that government
may not coerce its citizens ‘to support or participate in any religion or its
exercise.’”[145]
Even though Justice Kennedy,
writing for the majority in Lee,
found coercion in the invocation offered during the school graduation, he
insisted that there was none in Galloway. In Lee,
he noted that there were “[i]nherent
differences between the public school system and a session of a state
legislature” in Marsh v. Chambers.[146] “The atmosphere at the opening of a session
of a state legislature where adults are free to enter and leave with little
comment and for any number of reasons cannot compare with the constraining
potential of the one school event most important for the student to attend. The influence and force of a formal exercise
in a school graduation are far greater than the prayer exercise we condoned in Marsh.”[147]
By contrast, in Galloway, Justice Kennedy stated that the Town of Greece, “through the act of offering a brief, solemn, and respectful
prayer to open its monthly meetings,” did not compel its citizens to engage in
a religious observance.[148] He maintained that the “principal audience
for these invocations is not, indeed, the public but lawmakers themselves, 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.”[149] He further noted that the “analysis would be
different 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.”[150] Even though Justice Kennedy acknowledged the
fact that the board members themselves stood, bowed their heads, or made the
sign of the cross during the prayer in Greece and there were several occasions
where audience members were asked to rise for the prayer, the majority in Galloway adamantly insisted that there
was no coercion in the Town of Greece practice.[151] He maintained that “[n]othing in the record
suggests that members of the public are dissuaded from leaving the meeting room
during the prayer, arriving late, or even, as happened here, making a later
protest.”[152] Making an analogy to Marsh, Justice
Kennedy stated that board members and constituents in the Town of Greece are
“free to enter and leave with little comment and for any number of reasons.”[153]
By contrast, Justice Kagan,
the author of the principal dissent, perceived the Town of Greece’s board
meetings not as fully legislative proceedings, but rather hybrid ones.[154] She looked at them through the eyes of an average
American, who came to a town board meeting to resolve some personal business:
“[T]he Board's meetings are also
occasions for ordinary citizens to engage with and petition their government,
often on highly individualized matters.”[155]
His
interaction with the Board is analogous to a myriad of other governmental
interactions in such places as courts, polling places, and immigration proceedings.[156] Had each of these proceedings commenced with invocation
of a prayer, the average citizen might have felt that government aligned itself
or “placed its imprimatur” on a particular religious creed.[157]
Justice Kagan further
reminded the reader of the opinion that, no matter how an individual might
worship, she “stands in
the same relationship with her country, with her state and local communities,
and with every level and body of government.”[158] She noted that “[i]n this country, when
citizens go before the government, they go not as Christians or Muslims or Jews
(or what have you), but just as Americans (or here, as Grecians).”[159]
Justice Kagan emphasized that this
relationship defines individuals as “equal citizen[s], irrespective of religion.”[160] Nevertheless, the Town of Greece has “infuse[d]
a participatory government body with one (and only one) faith, so that month in
and month out, the citizens appearing before it become partly defined by their
creed—as those who share, and those who do not, the community's majority
religious belief.”[161]
Justice Kagan concluded that this
practice does not “square with the First Amendment's promise
that every citizen, irrespective of her religion, owns an equal share in her
government.”[162]
Writing
a separate dissenting opinion, Justice Breyer agreed with the Court of Appeals’
conclusion and its reasoning and also joined Justice Kagan’s dissent.[163] He underlined the Town of Greece’s particular
facts to establish that the prayer practice violated the Establishment Clause.[164] Stating that “it is not normally government's place to rewrite, to parse,
or to critique the language of particular prayers,” Justice Breyer noted that
the Constitution does not forbid efforts to explain to those who give the
prayers the nature of the occasion and the audience.[165] He further gave an example of the guidelines
the U.S. House of Representatives provides its guest chaplains with:
“The guest chaplain should keep in mind that the House of
Representatives is comprised of Members of many different faith traditions.
“The length of the prayer should not exceed 150 words.
“The prayer must be free from personal political views or
partisan politics, from sectarian controversies, and from any intimations
pertaining to foreign or domestic policy.”[166]
Justice
Breyer stressed that the Town of Greece “made no effort to promote a similarly
inclusive prayer practice here.”[167]
The newly issued Supreme Court’s
decision in Galloway is important in
several ways. First, the custom of
legislative prayer itself is widespread in national, state, and local
governments. These legislative bodies look
to the Supreme Court for guidance on what practices are constitutional. Second, this controversy presented the Court
with an opportunity to revisit Marsh
and apply at least one of its three prominent Establishment Clause tests: the Lemon test, the endorsement test, and
the Accommodation test. Since both the
majority and the principal dissent in Galloway
delved into history and upheld Marsh,
the paper further examines the history of legislative prayer in the United
States in Section B and analyzes Marsh v.
Chambers in Section C. Later, Section
D focuses on the post-Marsh
controversies.
B. The
History of Legislative Prayer
The history of legislative prayer in the
United States has its roots in the First Continental Congress, which met in
Philadelphia in September 1774. On
September 7, 1774, the Continental Congress began with a prayer offered by the
Reverend Jacob Duche, an Episcopal rector from Philadelphia.[168] A few years before the Constitution was
adopted, Founding Father Benjamin Franklin encouraged the practice of opening
legislative sessions with a prayer during the Constitutional Convention in
1787.[169] In his speech at the Convention in June 1787,
addressing arguing states’ representatives in the state of deadlock, a eighty-one-year-old
Franklin proclaimed:” I have lived, Sir, a long time, and the longer I live, the more
convincing proofs I see of this truth- that God Governs in the affairs of men.
And if a sparrow cannot fall to the ground without his notice, is it probable
that an empire can rise without his aid?”[170] He continued:” I therefore beg leave to
move-that henceforth prayers imploring the assistance of Heaven, and its
blessings on our deliberations, be held in this Assembly every morning before
we proceed to business, and that one or more of the Clergy of this City be
requested to officiate in that Service.”[171]
Article
I, Section 2 of the Constitution states: "The House of Representatives
shall chuse their Speaker and other Officers." The election of the Rev. William Linn as
Chaplain of the House on May 1, 1789, continued the tradition established by
the Continental Congresses of each day's proceedings opening with a prayer by a
chaplain.[172]
The early chaplains alternated duties with their Senate counterparts on a
weekly basis.[173] The two conducted Sunday services for the
Washington community in the House Chamber every other week.[174] Since the election of Rev. Linn in 1789, the
House has been served by chaplains of various religious denominations,
including Baptist (7), Christian (1), Congregationalist (2), Disciples of
Christ (1), Episcopalian (4), Lutheran (1), Methodist (16), Presbyterian (15),
Roman Catholic (1), Unitarian (2), and Universalist (1).[175] In addition to opening proceedings with
prayer, the Chaplain provides pastoral counseling to the House community,
coordinates the scheduling of guest chaplains, and arranges memorial services
for the House and its staff. In the
past, Chaplains have performed marriage and funeral ceremonies for House
members. Furthermore,
House Chaplain welcomes guest chaplains who have been recommended by the
Members of Congress to affirm pastoral leaders from many different backgrounds. [176]
Analogous to the House of
Representative, the United States’ Senate also has a long history of House
Chaplains. When the Senate first
convened in New York City on April 6, 1789, one of its first orders of business
was to appoint a committee to recommend a candidate for chaplain.[177]
On April 25, 1789, the Senate elected the Right Reverend Samuel Provoost,
Episcopal Bishop of New York, as its first chaplain.[178]
Since that time, the Senate has been
served by chaplains of various religious denominations, including Episcopalians
(19), Methodists (17), Presbyterians (14), Baptists (6), Unitarians (2),
Congregationalists (1), Lutherans (1), Roman Catholic (1), and Seventh-day
Adventist (1).[179]
The Senate has also appointed guest
chaplains representative of all the world's major religious faiths.[180]
In addition to opening the Senate each
day in prayer, the current Senate chaplain's duties include spiritual care and
counseling for senators, their families, and their staffs -- a combined
constituency of over 6,000 people -- and discussion sessions, prayer meetings,
and a weekly Senators' Prayer Breakfast.[181]
For more than 200 years,
each Congress has named a Chaplain of the House, excluding the years preceding
the Civil War when local clergy served as volunteer chaplains.[182] At the beginning of each Congress, the
Chaplain is elected to a two-year term by the House Membership.[183] There is no limit to the number of terms a
Chaplain may serve.[184] As both houses of Congress officially keep
chaplains on their employ, New York State’s Houses of legislature and the New
York City Council have a tradition to invite clergy for invocation ceremonies.[185] These customs undoubtedly create a giant
exception for legislative prayer in the rule that the Government must be
neutral toward religion. The Supreme
Court’s decision in Marsh v. Chambers,
where the Court upheld the chaplaincy of Nebraska’s state legislature,
legitimized this exception.[186] In Marsh,
the Court unequivocally gave government permission to speak religiously.[187]
C.
Marsh v. Chambers
In
Marsh, the question presented was
whether the Nebraska Legislature's practice of opening each legislative day
with a prayer by a chaplain paid by the State violates the Establishment Clause
of the First Amendment.[188] Writing for the majority, Chief Justice
Burger stated: “In light of the unambiguous and unbroken history of more than
200 years, there can be no doubt that the practice of opening legislative
sessions with prayer has become part of the fabric of our society. To invoke
Divine guidance on a public body entrusted with making the laws is not, in
these circumstances, an “establishment” of religion or a step toward
establishment; it is simply a tolerable acknowledgment of beliefs widely held
among the people of this country."[189] Turning to the question of whether any
features of the Nebraska practice violate the Establishment Clause, Marsh found it did not violate because
of its historical background.[190] Marsh concluded that “the men who wrote the
First Amendment Religion Clause did not view paid legislative chaplains and
opening prayers as a violation of that Amendment.”[191] Addressing the content of the prayer, Marsh 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.”[192] Further, it noted that it is not for the
Court “to embark on a sensitive evaluation or to parse the content of a
particular prayer.”[193]
The Court has seen Marsh as fundamentally different from its other Establishment
Clause cases, such as Everson. Justice O’Connor emphasized that “only in the most extraordinary
circumstances could actual worship or prayer be defended as ceremonial deism.”[194] Referring to Marsh, she stated:” We have upheld only one such prayer against
Establishment Clause challenge, and it was supported by an extremely long and
unambiguous history.”[195]
D.
Legislative
Prayers after Marsh v.
Chambers and
Lower Courts’ Struggles
Since
the Supreme Court’s decision in Marsh,
legislative prayer controversies have become a part of American culture.[196]
There has been a lot of litigation around legislative prayer.
For instance, in South Carolina, the
town council of the city of Great Falls regularly opened its sessions with
identifiably Christian prayer in 1999.[197]
When a woman tried to avoid the prayer by showing up late to the meetings, she was
harassed for doing so by council members and had to bring suit to end the
council's prayer practice.[198]
In Virginia, one of council members, Hashmel Turner, claimed that the Council
for the City of Fredericksburg violated his First Amendment rights when it
implemented a policy beginning in 2005 requiring that legislative prayers be
nondenominational.[199]
Turner felt religiously committed to
referring to Jesus Christ in his prayers.[200]
Another Virginian attempted to get on the list to offer prayers before the
Chesterfield County Board of Commissioners in 2002, but received a letter in
the mail denying her the opportunity because she was a Wiccan.[201]
In Indiana, pandemonium ensued when, on the floor of the state legislature, a
member of the clergy, who was invited to give a prayer, started the song, “Just
a Little Walk with Jesus.”[202]
In Utah, outcries erupted when, at a Murray City Council meeting, a citizen
tried to offer the following prayer: “Our Mother, who art in heaven (if, indeed
there is a heaven and if there is a god that takes a woman's form), hallowed be
thy name.”[203]
Further,
lower courts have struggled interpreting and applying Marsh.[204] The Marsh
holding has two distinct limitations.[205] First, it did not resolve the issue over the
content of the prayer.[206] Second, it did not expound on the way and
methods by which prayer-givers can be chosen.[207] These issues are safeguards against religious
preferentialism: “The first protects listeners from speech they find harassing
because of its denominational overtones; the second protects speakers from
being excluded because of their particular denominational affiliations.”[208] The most persistent of the second generation Marsh controversies have been about the
content of legislative prayers.[209] After Marsh,
some courts have imposed a rigorous “nonsectarian” requirement by mandating
that each individual legislative prayer be scrupulously nondenominational.[210] Other courts have only required that the legislative prayer process not
be exploited in such a way as to proselytize for one faith or to disparage some
other faith.[211]
After
Marsh, the Court gave some hints of
what a nonsectarian standard might mean in the context of legislative
prayer. For instance, the dissenters in McCreary
County implied
that legislative prayer must be consistent with “Christianity, Judaism, and Islam,”[212]
while Justice Blackmun explained that the legislative prayers in Marsh were
nonsectarian because “the particular chaplain had ‘removed all references to
Christ.’”[213] Interpreting Marsh, the Tenth Circuit expounded that “[t]he genre approved in Marsh
is a kind of ecumenical activity that seeks to bind peoples of varying faiths
together in a common purpose.”[214] It further noted:” That genre, although often
taking the form of invocations that reflect a Judeo-Christian ethic, typically
involves nonsectarian requests for wisdom and solemnity, as well as calls for
divine blessing on the work of the legislative body.”[215] Nevertheless, some courts have struggled to
draw the distinction between sectarian and non-sectarian prayers. For example, the Eleventh Circuit expressed
skepticism about the ability of courts to draw a bright line:
We would not know where to begin to demarcate the boundary
between sectarian and nonsectarian expressions, and the taxpayers have been
opaque in explaining that standard. Even the individual taxpayers cannot agree
on which expressions are “sectarian.” Bats, one of the taxpayers, testified
that a prohibition of “sectarian” references would preclude the use of
“father,” “Allah,” and “Zoraster” but would allow “God” and “Jehovah.” Selman,
another taxpayer, testified, “[Y]ou can't say Jesus, ... Jehovah, ... [or]
Wicca ....” Selman also deemed “lord or father” impermissible.[216]
In
addition, the non-sectarian standard has some troubling implications: it “protects
listeners, but in doing so, it necessarily imposes restrictions on speakers.”[217] Government has to censor prayer-givers by
redacting denominational language and excluding nonconforming speakers.[218] However, government usually cannot
discriminate against private speakers based on the content or viewpoint of
their speech.[219] While government cannot discriminate among
private speakers on the basis of their speech, no such rules apply to speech
that comes from the government itself.[220]
Rust
v. Sullivan[221]
illustrated the difficulty in distinguishing between governmental speech and
private speech. The case involved a law
that provided doctors with family planning funds but conditioned the money on
the doctors not discussing abortion.[222] However, when the government does not try to
send its own message, but instead attempts to create a place for individuals to
speak, the resulting speech is considered private.[223]
Some scholars believe that legislative
prayer is governmental speech, especially when the prayer is given by the
congressional chaplains, who are paid by Congress.[224]
Extending this argument, these scholars
also arrive to the same conclusion when government invites other people to come
in and offer prayers.[225]
As
discussed above, Marsh and its
progeny have had their share of controversies.
However, for the past thirty years, Marsh
has withstood the passage of time and the changing composition of the Supreme Court. Despite its limitations, as Galloway illustrated, none of the
current Justices refuted Marsh. The following part discusses the lessons of Galloway and its impact on the
Establishment Clause jurisprudence. It
also suggests that the legislative prayer practice may not be suitable at town
board meetings analogous to the ones in the Town of Greece.
III.
Marching Forward after Town of Greece v. Galloway
A. Galloway and the Establishment Clause
approaches
Town of Greece v.
Galloway has illustrated that courts continue to rely on at least two of the
three competing Establishment Clause tests.
In Galloway, the Second
Circuit used the endorsement test to conclude that “an objective, reasonable
person would believe that the town's prayer practice had the effect of
affiliating the town with Christianity.”[226]
It further held that the town's prayer
practice must be viewed as an endorsement of a particular religious viewpoint.[227]
On the other hand, the Supreme Court’s
opinion presented two flavors of the coercion test: in Justice Kennedy’s
decision and in Justice Thomas’ concurrence.
Justice Kennedy, the original architect of the coercion test,[228]
shifted his Lee version of the test
closer to the flavor espoused by Justices Scalia and Thomas. In Galloway,
Justice Kennedy noted in the majority opinion: “[R]espondents stated that the
prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to
coercion.”[229] In an opinion concurring in part and
concurring in judgment, Justice Thomas argued that an Establishment Clause
violation would require “actual legal coercion.”[230]
To illustrate this type of coercion, he
provided examples of state and local governments that “exercised government
power in order to exact financial support of the church, compel religious
observance, or control religious doctrine.”[231]
As
far as the Lemon test is concerned, it
has lost its old luster after its introduction more than forty years ago.[232] However, the Court invoked it in 2005 in McCreary County v. ACLU,[233]
and the Court referred to it as a “helpful signpost” in Mueller v. Allen.[234] Also, some scholars believe that the endorsement
test, introduced by Justice Sandra Day O'Connor, might be read as no more than
a reformulation of the Lemon test.[235]
B. Galloway is Distinct from Marsh
The carefully maintained congressional
tradition of legislative prayer is not proper and appropriate in many local
governmental circumstances, some of which are one step removed from local
school boards and often have regular citizens and children present during
meetings. Upholding the legislative
prayer practice in Marsh, the Court in
Galloway stated that it would be appropriate
for local legislative bodies to emulate two-hundred-year-old traditions of
Congress and some state legislatures.
Nevertheless, the majority in Galloway
failed to acknowledge that, just like appellate courts differ from housing
courts, local legislatures might often differ from the U.S. Senate or the
United States House of Representatives in the ways they conduct their daily
businesses. As the principal dissent in Galloway correctly pointed out, the Town
of Greece’s Board is a hybrid body that both adjudicates regular citizens’ controversies
and legislates. Many regular town
residents in towns, like the Town of Greece, can feel confused and might
misinterpret governmental proceedings if legislative prayer becomes an integral
part of hybrid, adjudicative-legislative events and of the myriad of other
governmental functions that average Americans regularly attend. Many uninitiated in nuances of governmental
affairs adults, including immigrants and newcomers to the United States, would
find hard to reasonably defy the state’s coercive efforts when they attend
local board meetings to address decision makers. They would not want to feel that they are “tolerated
guests,” rather than “equal members of the community.”[236] These ordinary people would not risk a chance
to alienate local policy makers by refusing to join in prayers even if those
prayers substantially differ from their own beliefs.
Town board meetings in the Town of
Greece also coerced high school children to participate in the exercise of
religion. It is unfortunate that the
majority in Galloway seems to
disregard the presence of children at town board meetings in the Town of Greece
even though both the District Court’s opinion and the Second Circuit’s decision
mention this fact.[237] For instance, the Second Circuit stated: “At times, children are among the
residents attending town meetings; members of Boy Scout troops and other student
groups have led the Pledge of Allegiance, and high school students may fulfill
a state-mandated civics requirement necessary for graduation by going to Board
meetings.”[238] Nevertheless, the main opinion in Galloway is silent about this fact, and
Justice Kennedy, the author of the majority opinion in Lee, failed to acknowledge the fact that the attendance of those
high school students, who have to “fulfill a state-mandated civics requirement
necessary for graduation,” is very much analogous to the attendance of the
graduation ceremony in Lee, which was
deemed “obligatory.”[239] In Lee,
Justice Kennedy emphasized that “there are heightened concerns with protecting
freedom of conscience from subtle coercive pressure in the elementary and
secondary public schools.”[240] Yet, children are completely out of the
picture in the main opinion in Galloway,
whereas the principal dissent portrayed the facts according to the plaintiffs’
complaint:
The Town Supervisor, Town Clerk, Chief of Police, and four
Board members sit at the front of the meeting room on a raised dais. But the
setting is intimate: There are likely to be only 10 or so citizens in
attendance. A few may be children or teenagers, present to receive an award or
fulfill a high school civics requirement.[241]
Nevertheless, the Galloway majority failed to recognize
that some of those teenagers are akin to “the dissenter of high school age” in Lee, who had “a reasonable perception
that she [was] being forced by the State to pray in a manner her conscience [would]
not allow.”[242] On the other hand, Lee fully acknowledged that the teenager’s injury was real.[243] As Justice Kennedy declared in Lee:
The lessons of the First Amendment are as urgent in the
modern world as in the 18th century when it was written. One timeless lesson is
that if citizens are subjected to state-sponsored religious exercises, the
State disavows its own duty to guard and respect that sphere of inviolable
conscience and belief which is the mark of a free people. To compromise that
principle today would be to deny our own tradition and forfeit our standing to
urge others to secure the protections of that tradition for themselves.[244]
When
small towns attempt to emulate the congressional legislative prayer, the Court
must remember “the lessons of the First Amendment” and protect the politically uninitiated,
the vulnerable, religious minorities, and children from coercive effects of state-sponsored
religion.
C. The World after Galloway
Analogous to Marsh in the 1980s, Galloway
has opened the door to a score of new legal battles over the proper meaning of
legislative prayer. Concluding in Galloway that the town’s prayers are
constitutional because they are not overly sectarian and overly coercive, the
Court made it more difficult for plaintiffs to challenge legislative prayers.[245] At the same time, in the post-Galloway era, very few restrictions on the
content of legislative prayer and the broad guidelines in Galloway will allow the existence of various interpretations of
legislative prayer practice across the United States. For instance, the ink was barely dry on the
decision in Galloway when Roanoke
County’s Supervisor, Al Bedrosian, in Virginia spoke of his willingness to
strike the current nonsectarian prayer policy in the town.[246] “The freedom of religion
doesn’t mean that every religion has to be heard,” said Bedrosian, who added
that he is concerned about groups such as Wiccans and Satanists.[247]
“If we allow everything … where do you draw the line?”[248] According to his interpretation of the Galloway ruling, he “envisions a setup by which the supervisors would approve,
individually, people from their districts to offer the opening prayer.”[249]
Further, in the post-Galloway world, invoking legislative
prayer at local, hybrid governmental proceedings might change the prayer’s
original purpose and function. When
Justice Kennedy spoke of its purpose in Galloway,
he stated that it “lend[s] gravity to the occasion
and reflect[s] values long part of the Nation’s heritage.”[250] Being “solemn and respectful in tone,” the
prayer should “invite lawmakers to reflect upon shared ideals and common ends
before they embark on the fractious business of governing.”[251] These goals substantially echo Justice
Brennan’s acknowledgement of secular functions legislative prayer might play,
which include “formally
opening the legislative session, getting the members of the body to quiet down,
and imbuing them with a sense of seriousness and high purpose.”[252] These honorable and lofty aims might be
appropriate at a numerous and diverse legislative body, like the U.S. House of
Representatives, which consists of 435 members[253]
from very different parts of the country.
However, these goals might be trivialized in the context of a small
local, five-member town board in a town with a population of 94,000.[254] Unlike the congressional sessions, where the
general public remains segregated from legislative activity and may not address
the body except by occasional invitation, regular citizens of the Town of
Greece attend town meetings to “speak on matters of local importance” and “petition
the board for action that may affect their economic interests, such as the
granting of permits, business licenses, and zoning variances.”[255] By invoking legislative prayer at a meeting
that is about to resolve such mundane matters as granting of permits and
business licenses, local town boards will substantially affect the character
and noble role of legislative prayer. It
will gradually become trivialized, unnoticed, and disregarded by impatient
citizens, who are solely concerned with the board’s resolutions on matters of
their licenses and grants.
Conclusion
Deeply
rooted in the American history, the Establishment Clause has several distinct
interpretations as to its origin, role, and purpose. These interpretations range from a firm
belief in strict separation of church and state to a belief that government can
pursue secular goals through nondiscriminatory sectarian means. The latest Establishment Clause controversy, Town of Greece v. Galloway, illustrated
that a thirty-year-old seminal case in the area of legislative prayer, Marsh v. Chambers, remains a good
law. Galloway
has reaffirmed Marsh and the
legislative prayer exception the latter carved out in the
body of the Establishment Clause jurisprudence.
Relying on Marsh and applying the coercion test, Galloway found that there was no constitutional violation in the
way the prayer practice was conducted at the Town of Greece’s board
meetings. Yet, the Galloway hybrid governmental functions are distinct from the state
legislative sessions in Marsh, and legislative
prayer is not suitable at town board meetings in towns, like the Town of
Greece. The Supreme Court should have carefully
approached this controversy and distinguished the facts of Galloway from the factual background of Marsh. After all, the cost
of political participation cannot be the pressure to participate in a Christian
prayer spoken by a person chosen in a manner that excluded other
religions. The state should be precluded
from asking its citizens to participate in religious ceremonies in a setting
designed to allow and encourage citizens to petition their government.
[4]
Christopher C. Lund, Legislative Prayer and the Secret
Costs of Religious Endorsements, 94 Minn. L. Rev. 972, 974 (2010).
[6] U.S. Const. amend. I.
[7] Noah
Feldman, From Liberty to Equality: The Transformation of the Establishment
Clause, 90 Cal. L. Rev. 673, 680 (2002).
[8] Harold J.
Berman, Religion and Law: The First Amendment in Historical Perspective,
35 Emory L.J. 777, 779 (1986).
[9] Noah
Feldman, From Liberty to Equality: The Transformation of the Establishment
Clause, 90 Cal. L. Rev. 673, 675 (2002).
[11]
Id.
[31] Sch.
Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 256 (1963) (Brennan,
J., dissenting).
[33] Wallace
v. Jaffree, 472
U.S. 38, 113 (1985) (Rehnquist, J., dissenting) (“The true meaning of the
Establishment Clause can only be seen in its history.”).
[34] Id.
[35] Id.
[39] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Laurence H. Tribe, American Constitutional Law 1158-1160
(2d ed. 1988).
[45] Id.
[46]
Id.
[48] Id.
[49] Id.
[50]
Id.
[51] Erwin Chemerinsky, Constitutional Law 1667 (3d ed. 2009).
[52]
Id.
[53] Chemerinsky, supra n. 51, at 1703.
[54] Id.
[55] 330 U.S. 1 (1947).
[56] Chemerinsky, supra n. 51, at 1717.
[59] Id.
[62] Chemerinsky, supra n. 51, at 1704.
[63] Id.
[64] Id.
[65] 465
U.S. 668, 694 (1984).
[69] Chemerinsky, supra n. 51, at 1706.
[70] Cnty. of Allegheny v. Am. Civil Liberties Union Greater
Pittsburgh Chapter, 492 U.S. 573, 659 (1989) (Kennedy,
J., concurring in the judgment in part and dissenting in part), abrogated by
Town of Greece, N.Y. v. Galloway, No. 12-696, 2014 WL 1757828 (U.S. May
5, 2014).
[73] 505 U.S. 577, 578 (1992).
[75] Chemerinsky, supra n. 51, at 1707.
[78] Galloway v. Town of Greece,
681 F.3d 20, 22 (2d Cir. 2012), cert. granted, 133 S. Ct. 2388 (2013) and
rev'd sub nom. Town of Greece, N.Y. v. Galloway, No. 12-696, 2014
WL 1757828 (U.S. May 5, 2014).
[79]
Id.
[80] Id.
[84]
Id.
[85]
Id.
[86]
Id.
[87] Id.
[88]
Id.
[89]
Id.
[90]
Id.
[91]
Id.
[92]
Id.
[94] Id. at 22.
[95]
Id.
[96] Id.
[97] Id.
[99]
Id.
[100]
Id. at 25.
[101]
Id.
[103] Id.
[105]
Id.
[106]
Id.
[107]
Id.
[108]
Galloway v. Town of Greece, 732 F.
Supp. 2d 195, 211 (W.D.N.Y. 2010), rev'd, 681 F.3d 20 (2d Cir. 2012), rev'd
sub nom. Town of Greece, N.Y. v. Galloway, No. 12-696, 2014 WL
1757828 (U.S. May 5, 2014).
[109]
Galloway v. Town of Greece, 681 F.3d
20, 30 (2d Cir. 2012), cert. granted, 133 S. Ct. 2388 (U.S. 2013) and rev'd
sub nom. Town of Greece, N.Y. v. Galloway, No. 12-696, 2014 WL
1757828 (U.S. May 5, 2014).
[112]
463 U.S. 783 (1983).
[114] Id. at *7.
[117]
492 U.S. 573, 670.
[122] Id.
[126]
Id.
[129]
Id.
[131] Id.
[133] Id.
[134]
Id.
[136]
Id.
[137]
Id.
[138]
Id.
[139]
Id.
[141]
Id.
[145]Town of Greece, N.Y. v. Galloway, No. 12-696, 2014 WL 1757828 (U.S. May 5, 2014), *14 (citing County of Allegheny,
492 U. S. at 659 (Kennedy, J., concurring in judgment in part and dissenting in
part)).
[146] Lee, 505 U.S. at 596.
[149]
Id.
[153]
Id.
[154]
Town of Greece, N.Y. v. Galloway,
No. 12-696, 2014 WL 1757828 (U.S. May 5, 2014), at *33 (Kagan, J., dissenting).
[155]
Id.
[158] Id. at *30.
[159] Id. at *39.
[161]
Id.
[163] Id. at *27 (Breyer, J., dissenting).
[164]
Id.
[166]
Id.
[167]
Id.
[168] U.S. House of Representative, Chaplain’s
Office Brochure, available at http://chaplain.house.gov/chaplaincy/chaplain_brochure.pdf.
[169] Id.
[170] Benjamin Franklin, Benjamin Franklin's Request for Prayers at
the Constitutional Convention, The Founding Faith Archive (July 28, 1787), http://www.beliefnet.com/resourcelib/docs/21/Benjamin_Franklins_Request_for_Prayers_at_the_Constitutional__1.html.
[171]
Id.
[172]
U.S. House of
Representative, History of the Chaplaincy, available
at http://chaplain.house.gov/chaplaincy/history.html.
[173]
Id.
[174]
Id.
[175]
Id.
[176]
U.S. House of
Representative, Guest Chaplains, available
at http://chaplain.house.gov/chaplaincy/guest_chaplains.html.
[177]
Senate Chaplain, Office of
the Senate Chaplain, available at
http://www.senate.gov/artandhistory/history/common/briefing/Senate_Chaplain.htm.
[178]
Id.
[179]
Id.
[180] Id.
[181] Id.
[182]
U.S. House of
Representative, Chaplain’s Office Brochure, available
at http://chaplain.house.gov/chaplaincy/chaplain_brochure.pdf.
[183]
Id.
[184]
Id.
[185]
The New York City Council,
Meeting Items, available at
http://legistar.council.nyc.gov/MeetingDetail.aspx?ID=306286&GUID=FAD2B409-2CCD-4BD7-9B1C-4DA7353ACF3D&Options=info|&Search=stated+meeting
[187]
Lund, supra n.
4, at 973.
[193]
Id.
[194]
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1, 40 (2004), abrogated by Lexmark Int'l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377 (2014).
[195]
Id.
[197] Wynne v. Great Falls, 376 F.3d 292, 298-99 (4th Cir. 2004).
[198] Id. at 295.
[201] Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276
(4th Cir. 2005).
[202] Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006).
[206]
Id.
[207]
Id.
[209]
Id.
[210]
Id. at 991
(citing Wynne v. Great Falls, 376 F.3d 292, 302 (4th Cir. 2004); Bacus v. Palo
Verde Unified Sch. Dist., 52 F. App'x 355, 357 (9th Cir. 2002)).
[211] Pelphrey v. Cobb Cnty., 547 F.3d
1263, 1271 (11th Cir. 2008); Snyder
v. Murray City Corp., 159 F.3d 1227, 1236 (10th Cir.
1998).
[212]
McCreary Cnty. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844, 894 (2005) (Scalia
J., dissenting).
[213]
Cnty. of Allegheny v. Am. Civil Liberties Union Greater
Pittsburgh Chapter, 492 U.S. 573, 603 (1989), abrogated
by Town of Greece, N.Y. v. Galloway, No. 12-696, 2014 WL 1757828
(U.S. May 5, 2014).
[215]
Id.
[218]
Id.
[221]
500 U.S. 173, 192-93 (1991).
[223]
Rosenberger
v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 834 (1995) (public university
denied generally available school funding to a student publication due to its
religious character).
[226]
Galloway v. Town of Greece, 681 F.3d
20, 33 (2d Cir. 2012), cert. granted, 133 S. Ct. 2388 (U.S. 2013), rev'd
sub nom. Town of Greece, N.Y. v. Galloway, No. 12-696, 2014 WL
1757828 (U.S. May 5, 2014).
[231] Id.
[232]
Stephen M. Feldman, Divided We Fall: Religion, Politics,
and the Lemon Entanglements Prong, 7 First Amend. L. Rev. 253, 263 (2009).
[233]
545 U.S. 844, 859-61 (2005).
[234]
463 U.S. 388, 394 (1983).
[236]
Erwin Chemerinsky, A Fixture on A Changing Court: Justice
Stevens and the Establishment Clause, 106 Nw. U. L. Rev. 587, 601 (2012).
[237]
Galloway v. Town of Greece, 732 F.
Supp. 2d 195, 209 (W.D.N.Y. 2010), rev'd, 681 F.3d 20 (2d Cir. 2012) rev'd
sub nom. Town of Greece, N.Y. v. Galloway, No. 12-696, 2014 WL
1757828 (U.S. May 5, 2014).
[238]
Galloway v. Town of Greece, 681 F.3d
20, 23 (2d Cir. 2012) , cert. granted, 133 S. Ct. 2388 (U.S. 2013) and rev'd
sub nom. Town of Greece, N.Y. v. Galloway, No. 12-696, 2014 WL
1757828 (U.S. May 5, 2014).
[241] Town of Greece, N.Y. v.
Galloway, No.
12-696, 2014 WL 1757828 (U.S. May 5, 2014) (Kagan, J., dissenting); Galloway v. Town of Greece,
732 F. Supp. 2d 195, 209 (W.D.N.Y. 2010), rev'd, 681 F.3d 20 (2d Cir.
2012), rev'd sub nom. Town of Greece, N.Y. v. Galloway, No.
12-696, 2014 WL 1757828 (U.S. May 5, 2014).
[243]
Id.
[245]
Christopher Lund, Symposium: Town of Greece v. Galloway going
forward, SCOTUSblog (May. 6,
2014, 5:05 PM),
http://www.scotusblog.com/2014/05/symposium-town-of-greece-v-galloway-going-forward/.
[246] Zach Crizer and
Chase Purdy, Roanoke County supervisor
ready to strike prayer policy after Supreme Court ruling, The Roanoke Times
(May 5, 2014, 6:35 pm), http://www.roanoke.com/news/local/roanoke_county/roanoke-county-supervisor-ready-to-strike-prayer-policy-after-supreme/article_95c8b212-d4a5-11e3-81c0-0017a43b2370.html.
[247]
Id.
[248]
Id.
[249]
Id.
[253]
U.S. House of Representatives, Directory of Representatives, available at http://www.house.gov/representatives/.
[254] Galloway v. Town of Greece, 681 F.3d 20, 22 (2d Cir. 2012), cert.
granted, 133 S. Ct. 2388 (U.S. 2013) and rev'd sub nom. Town of
Greece, N.Y. v. Galloway, No. 12-696, 2014 WL 1757828 (U.S. May 5, 2014).
