Chemerinsky: The Supreme Court's answer to a prayer
Erwin Chemerinsky.
The Supreme Court likely greatly underestimated the impact that its May 5 decision in Town of Greece v. Galloway will have on government meetings across the country. In the days after the decision, I received numerous phone calls and emails from attorneys for local government bodies–from school boards to park commissions to city councils–wanting clarification of what was now allowed in terms of prayers at their meetings. The answer seems to be almost anything and the result will be that Christian prayers will now become common before government meetings of all sorts in many places of the country.
The Town of Greece is a suburb of Rochester, N.Y., with a population of about 100,000. Until 1999, its town board opened meetings with a moment of silence. But then Town Supervisor John Auberger initiated a policy change, and the town began inviting clergy to begin meetings each month with a prayer. From 1999-2007, the town invited exclusively Christian ministers, most of whom included explicitly Christian content. Some elaborated on Christian theology, discussing “the saving sacrifice of Jesus Christ on the cross” and “the plan of redemption that is fulfilled in Jesus Christ.” The audience was routinely asked to bow their heads and to participate in the prayers, such as by reciting the prayer, “Our Father.”
In 2007, complaints were made to the Town Board about this and for four months clergy from other religions were invited. But then for the next 18 months, the Town Board reverted to inviting only Christian clergy, and prayers were almost always explicitly Christian in their content.
This was not the first time the Supreme Court has dealt with prayer before legislative sessions. In Marsh v. Chambers, issued in 1983, the Supreme Court upheld the constitutionality of prayers before sessions of the Nebraska legislature delivered by a Presbyterian minister who was on the state’s payroll for this purpose. The court, in an opinion by Chief Justice Warren Burger, emphasized the historical practice of legislative prayers since the earliest days of the country. The court, however, also noted that all references to Christ had been removed from the prayers.
A lawsuit was brought claiming that the Christian prayers before the Town of Greece’s meetings violated the Establishment Clause of the First Amendment. The federal district court ruled in favor of the Town of Greece, but the 2nd U.S. Circuit Court of Appeals, based in New York City, reversed. Judge Guido Calabresi wrote for the court and emphasized the totality of the circumstances: the town inviting only Christian clergy for almost all of an 11-year period; the explicitly Christian content of the prayers; the participatory nature of many of the prayers in a small setting, including the audience being asked to join in saying the “Our Father” prayer and bowing their heads.
In a 5-4 decision, without a majority opinion, the Supreme Court reversed the 2nd Circuit and held that the Town of Greece had not violated the Establishment Clause. Justice Anthony M. Kennedy wrote the plurality opinion, joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. Justice Kennedy emphasized the long history of clergy-delivered prayers before legislative sessions. The plurality acknowledged that in Marsh v. Chambersthe court had approved prayers where there was no reference to Jesus Christ, but Justice Kennedy said that historically legislatures were not limited to such non-sectarian prayers.
Justice Clarence Thomas wrote an opinion concurring in part and concurring in the judgment, which was joined by Justice Antonin Scalia, that would have gone much further in allowing religious involvement in government. Justice Thomas, writing only for himself, reiterated his view that the Establishment Clause should not apply to state and local government at all. His believes that the Establishment Clause was meant solely to keep the federal government from creating a church and thus nothing a state or local government does ever will violate the Establishment Clause.
In a part of the opinion joined by Justice Scalia, Justice Thomas argued that an Establishment Clause violation would require “actual legal coercion … not the ‘subtle coercive pressures’ allegedly felt by respondents in this case.” In other words, these two justices believe that only “legal coercion”–forcing a person to participate in religious practices or face legal penalties–violates the Establishment Clause. Justice Alito also wrote a concurring opinion, joined by Justice Scalia, that focused primarily on responding to Justice Elena Kagan’s dissent.
Justice Kagan wrote the major dissent and was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor; Justice Breyer also wrote a shorter dissenting opinion. Justice Kagan stressed that “the Town of Greece’s prayer practices violate that norm of religious equality–the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.” Justice Kagan distinguished Marsh v. Chambersand said that the Town of Greece’s practices were different because people were required to go to the Town Board for things like zoning variances, and because of the way in which the audience was asked to participate in prayers and in the content of the prayers themselves. Her dissent was reminiscent of retired Justice Sandra Day O’Connor’s view that the Establishment Clause exists to ensure that none of us is made to feel like outsiders, or insiders, to our own government.
What will this decision mean for local governments across the country? First, they can begin their meetings with prayers of virtually any type. Realistically, this often will mean Christian prayers. Justice Kennedy’s plurality opinion left open the possibility of challenges to legislative prayers only in very limited circumstances: “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 particular prayer will not likely establish a constitutional violation.” The plurality did not define what this means and there surely will be litigation over it, but there is no doubt that it is very deferential to allowing prayers and to precluding challenges based on the content of specific prayers.
Second, it is clear that there are five justices–Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Alito–who want to allow much more of a religious presence in government and government support for religion. This is the third Establishment Clause case from the Roberts court and all have been 5-4 decisions rejecting the constitutional challenge. In Salazar v. Buono, issued in 2010, the court reversed a federal court of appeals decision that found a cross in a federal park to violate the Establishment Clause. Justice Kennedy wrote the opinion for the plurality on fairly narrow grounds, focusing on a federal law that transferred ownership of the land where the cross was located to a private group. Justices Scalia and Thomas concurred in the judgment and said that no one is injured by a religious symbol on government property and no one should have standing to sue to challenge its presence.
In Arizona School Tuition Organization v. Winn, issued in 2011, the Supreme Court held that taxpayers lacked standing to challenge a state law that provided tax credits to those giving money to school tuition organizations and where the funds overwhelmingly went to Catholic and Evangelical Christian Schools. Justice Kennedy wrote the opinion for the majority distinguishing Flast v. Cohen, issued in 1968, and held that although taxpayers have standing to challenge government expenditures as violating the Establishment Clause, they lack standing to challenge tax credits. Justices Scalia and Thomas concurred and urged the overruling of Flast v. Cohen.
Town of Greece v. Galloway is thus likely one of a series of cases to come where the conservative majority rejects an Establishment Clause challenge and allows much more of a religious presence in government.
Not long before she left the bench, Justice O’Connor declared: “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 … Why would we trade a system that has served us so well for one that has served others so poorly?”
It is deeply unfortunate that the majority of the court fails to understand this basic insight and is so greatly lessening the protections of the Establishment Clause of the First Amendment.
Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.
