Second Circuit Adopts Intermediate Test for Legislative Prayer

An interesting decision yesterday from the Second Circuit dealing with the issue of legislative prayer.  The town of Greece, New York, had begun its town board meeting sessions with a prayer since 1999; the town had a practice of inviting different people to give the opening prayer.  Objecting town residents sued in 2008 and the district court granted summary judgment for the defendant town.

In a panel decision authored by Judge Guido Calabresi, the Second Circuit reversed.  Crucial to the Court’s reversal was that in practice almost all of the prayers had been delivered by Christian clergy members — “from 1999 through 2007, every prayer-giver who gave the invocation met this description.”  After 2008 and the receipt of complaints, a Wiccan and Jewish prayer were delivered, but then between 2009 and 2010, the town again invited only Christians.  Typically the invocations “gave thanks” for life in the town and “requested assistance” with governance, “begin[ning] with some variant of ‘let us pray,’  and then [] speak[ing] about the matters for which ‘we’ pray . . . . Members of the audience and the Board have bowed their heads, stood, and participated in the prayer by saying ‘Amen,'” or on occasion by making the sign of the cross.  About 2/3 of the prayers contained specific references to Jesus Christ, while the remaining third “spoke in more generally theistic terms.”

The case was one of first impression for the Second Circuit on the issue of the constitutionality of legislative prayers.  In construing Marsh v. Chambers and County of Allegheny v. ACLU, and in considering various circuit court precedent addressing the issue of legislative prayer, the Court took a very interesting position.  It held that “denominational” references in legislative prayers are permissible, and that the distinction between “sectarian” and “nonsectarian” prayer is untenable.  Here’s a portion of the Court’s decision:

To the extent that these circuit cases stand for the proposition that a given legislative prayer practice, viewed in its entirety, may not advance a single religious sect, we cannot disagree . . . . To the extent that these circuit cases stand instead for the proposition that the Establishment Clause precludes all legislative invocations that are denominational in nature, however, we cannot agree. The line between sectarian and nonsectarian prayers, though perhaps the least defective among various possible distinctions that can be drawn in this area, runs into two sizable doctrinal problems.

The first problem with “nondenominational” public prayers was that the Supreme Court had held those unconstitutional in Lee v. Weisman (though Judge Calabresi did note that Lee did not involve legislative prayers).  A preference for “nondenominational” prayers was tantamount, said Judge Calabresi, to “establish[ing] a vague theism.” 

And the second problem with “nondenominationalism” was Marsh itself — which, said the Court, “is hard to read, even in light of Allegheny, as saying that denominational prayers, in and of themselves, violate the Establishment Clause.”  No “single” denominational prayer would violate the Establishment Clause and “a series of denominational prayers, each delivered in the name of a different sect, could hardly be perceived as having” the effect of “affiliating the government” with any specific faith.

Instead, said the Court, what was crucial is “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.”  Adopting a highly fact sensitive and case-specific method, the Court held that, in light of “several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials,” this town’s practice was an endorsement of Christianity (particularly important was the fact that each and every invocation for the first 9 years of the practice and almost exclusively thereafter was Christian).

All of that notwithstanding, the Second Circuit’s fact-sensitive “substantial neutrality among creeds” test represents, I think, an intermediate approach to the issue of legislative prayer.  From a doctrinal perspective, what is most interesting to me are the Court’s comments about “sectarian” and “nonsectarian” prayer.  Here’s a large chunk of the Court’s conclusion (note the free policy advice at the end):

We emphasize what we do not hold. We do not hold that the town may not open its public meetings with a prayer or invocation. Such legislative prayers, as Marsh holds and as we have repeatedly noted, do not violate the Establishment Clause. Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.” A requirement that town officials censor the invocations offered—beyond the limited requirement, recognized in Marsh, that prayer-givers be advised that they may not proselytize for, or disparage, particular religions—is not only not required by the Constitution, but risks establishing a “civic religion” of its own. Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution. Nor are we adopting a test that permits prayers in theory but makes it impossible for a town in practice to avoid Establishment Clause problems. To the contrary, it seems to us that a practice such as the one to which the town here apparently aspired—one that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief—is fully compatible with the First Amendment.

What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.

People with the best of intentions may be tempted, in the course of giving a legislative prayer, to convey their views of religious truth, and thereby run the risk of making others feel like outsiders. Even if all prayer-givers could resist this temptation, municipalities with the best of motives may still have trouble preventing the appearance of religious affiliation. Ours is a society splintered, and joined, by a wide a constellation of religious beliefs and non-beliefs. Amidst these many viewpoints, even a single circumstance may appear to suggest an affiliation. To the extent that the state cannot make demands regarding the content of legislative prayers, moreover, municipalities have few means to forestall the prayer-giver who cannot resist the urge to proselytize. These difficulties may well prompt municipalities to pause and think carefully before adopting legislative prayer, but they are not grounds on which to preclude its practice.

The case is Galloway v. Town of Greece.

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