The Establishment Clause prohibits the government from establishing a state religion or endorsing any one religion over others. Accordingly, the Court has held that government-sponsored prayer in some contexts, such as schools, violates the Establishment Clause. Nonetheless, the Supreme Court held thirty years ago in Marsh v. Chambers that legislative prayer (prayer held at the beginning of a legislative session and lead by clergy employed by the legislature) has been understood as consistent with the Establishment Clause since the founding and thus does not violate the Establishment Clause. This term, the Court reaffirmed the holding of that case, ruling in Town of Greece v. Galloway that the town’s practice of beginning town board meetings with a prayer did not violate the Establishment Clause.
Since 1999, the monthly town board meetings in Greece, New York, have opened with a roll call, a recitation of the Pledge of Allegiance, and a prayer given by clergy selected from the congregations listed in a local directory. While the prayer program is open to all creeds, nearly all of the local congregations are Christian; thus, nearly all of the participating prayer givers have been too—only four prayers in the past 15 years have been from other faiths. Respondents, citizens who attend meetings to speak on local issues, alleged that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers. The Second Circuit reversed the district court’s determination that the town’s prayers conformed with Marsh, ruling that the prayers, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity.
A sharply divided Court reversed, ruling the town’s conduct constitutional. The majority, lead by Justice Kennedy, held that the standard for determining the constitutionality of the town’s legislative prayer is whether the practice fits within the tradition long followed in Congress and the state legislatures. Justice Kennedy rejected respondent’s insistence upon non-sectarian legislative prayers as inconsistent with that tradition. According to the majority, such a requirement would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. The Court also questioned whether consensus as to what constitutes non-sectarian prayer would be likely or possible and noted that even though some prayers were explicitly sectarian (e.g., invoking Jesus Christ), many appealed to universal themes, such as justice and peace. Thus, the majority concluded that, 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 establish a constitutional violation.
But the majority split as to how to apply Marsh. Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, would engage in a fact-sensitive inquiry that considers both the setting in which the prayer arises and the audience to whom it is directed. According to those justices, such an analysis shows that the town is not coercing its citizens to engage in a religious observance. Justice Thomas, joined by Justice Scalia, agreed that the town’s prayer practice does not violate the Establishment Clause, but concluded that—even if the Establishment Clause were properly incorporated against the States through the Fourteenth Amendment (which they do not concede)—the Clause is not violated by the kind of subtle pressures respondents allegedly suffered, which do not amount to actual legal coercion.
Justice Kagan dissented, joined by Justices Ginsburg, Breyer, and Sotomayor. While she readily accepted that legislative prayer has a distinctive constitutional warrant by virtue of tradition, Justice Kagan disputed whether the town’s prayer practice was consonant with the Founders’ understanding of the Establishment Clause. Justice Kagan emphasized the difference between the town’s practice and the legislative prayer at issue in Marsh: rather than an ordinary legislative prayer, held before the regular business of a legislative body and directed only to the legislators, not to members of the public who might be observing in the gallery, the prayers in the Town of Greece were held immediately before citizens’ main opportunity to publicly petition their government and often implicitly required their verbal or gestural participation. Moreover, Justice Kagan emphasized that the clergy who prayed and the prayers that were said were almost exclusively of one faith: Christianity. According to Justice Kagan, such predominance coupled with the sectarian nature of the prayers themselves, many of which extolled “the saving sacrifice of Jesus Christ on the cross” or expressed similar explicitly dogmatic expressions of Christianity, removed the town’s practice from the ambit of Marsh and violated the Establishment Clause.
As a result of this case, municipal and state government bodies will be free to begin legislative business with sectarian prayers—even if those prayers drawn exclusively from one religious tradition and directed at citizens who are present to petition their government or conduct other business.