The United States Supreme Court extended an otherwise narrow exception to the Establishment Clause of legislative prayer—supported mostly by history and tradition—to a hybrid legislative and judicial body in a recent decision in Town of Greece v. Galloway. In essence, the Court held that the invocation of a non-sectarian prayer before a town council meeting does not violate the Constitution’s Establishment Clause. The decision may be consistent with precedent, but unlike the Court’s holding in Marsh v. Chambers, the result reached does not pose little threat to the overall fate of the Establishment Clause. It has been argued at length that history and tradition of legislative prayer should be the guideposts in determining the constitutionality of the prayer in this case. While those arguments have force, the history and tradition of a wholly unrelated legislative body cannot be used to validate an otherwise unconstitutional violation of the Establishment Clause by a local government.
History, Tradition, and Marsh do not govern this issue.
The First Amendment to the United States Constitution provides that Congress shall make no law respecting an establishment of religion. Yet, both Houses of Congress open each legislative session with the invocation of prayer, each president has invoked Divine guidance on assuming office, and each session of the Supreme Court opens with the statement God save the United States and this Honorable Court. In light of this “unambiguous and unbroken history” the majority held that legislative prayer does not violate the Establishment Clause. “To invoke Divine guidance on a public body entrusted with making the laws is not an establishment of religion . . . it is simply a tolerable acknowledgement of beliefs widely held among the people of this country,” wrote Berger in Marsh. If this were truly a Constitutional standard, then the prayer offered in the Town of Greece may have passed constitutional muster. The prayers were not used to proselytize or advance any one particular religious doctrine. Additionally, the Town opened up the prayer opportunity to people of all faiths. Contrasted against Marsh, where the Nebraska legislature paid one Christian chaplain to deliver a pre-session invocation for 16 years, the Town’s prayers seem to create even less cause for Constitutional concern. This case does not fall squarely within the holding and rationale found in Marsh, however. The government cannot pressure citizens to participate in a religious practice. This case is not about the acknowledgement of a religious tradition, or a prayer to seek divine guidance, as was the case in Marsh. Rather, this case involves citizens and their right to participate in local government without being subjected to, and coerced to support, a religious act with which their conscience does not approve. Citizens who, of their own free will and accord, wish to participate in such religious practices may do so, but the government should not direct religious messages at the broader citizenry.
Government must be neutral in matters of religious theory, doctrine, and practice.
It is important to understand why the prayers offered at the town board meetings implicate the Establishment Clause. Though not completely dispositive of the issue at hand, the test set forth in Lemon v. Kurtzman—which was largely ignored by the majority in Marsh—should have guided the Court in determining whether the prayer was in danger of a Constitutional violation. In Lemon, the court subjected government involvement with religion to a three-prong test. First, there must be a secular purpose. Second, its primary effect must be one that neither advances nor inhibits religion. Finally, there must not be excessive government entanglement with religion. As to the “purpose” of the prayer being offered before the town board meetings, petitioner argued that the prayer’s purpose is to solemnize the proceedings, acknowledge the history and tradition of religion, and accommodate the spiritual needs of the citizens. But prayer, whatever its intended purpose, is an overt religious act. The purpose of prayer is to invoke a conversation with God. To say that prayer was offered for a purely secular purpose would degenerate the purpose and meaning of prayer. Furthermore, the “primary effect” of the prayers offered before the Town’s board meetings is also religious. The contention that the prayer is non-sectarian and that those who do not wish to participate or wish to be excused from the room does not relieve the prayer from the confines of the Establishment Clause. Government must be neutral in matters of religious theory, doctrine, and practice. There are ample facts in Town of Greece to suggest that the prayer being offered is understood to be an act of worship. The Respondent referred to several incidences in which the chaplain offering the prayer, believing all in attendance to be of Christian faith, asked the audience to join in the prayer. The invocation was offered in the same way that it would be offered in a church. The critical difference was that the religious message conveyed was coming from the podium of the government, not the pulpit of the church. The Establishment Clause of the First Amendment means at least neither a state nor the federal Government can set up a church. Lastly, the Town’s prayer leads to excessive entanglement between the local government and religion. Entanglement can take two forms. First a state statute or program might involve the state impermissibly in monitoring religious affairs; and second, there may be excessive entanglement when the government’s program might cause political division. Regardless of how the Town of Greece attempts to avoid entanglement, it will inevitably run afoul of these Constitutional boundaries. As is the case in most political issues, government is subject to the swaying opinions of a partisan citizenry. There will be winners and losers, and the most common recourse is the right to dissent. However, no American should at any point feel alienated from his government because the government has taken some action with regard to religion. The two citizens that brought this case felt this sense of alienation precisely because their local government was facilitating a religious act with which they felt pressure to participate in.
“[I]t injects religion into the political sphere by creating the potential that each and every selection of a chaplain, or consideration of a particular prayer, or even reconsideration of the practice itself, will provoke a political battle along religious lines and ultimately alienate some religiously identified group of citizens,” wrote Justice Breyer in the dissenting opinion in Marsh.
Religion is too personal, too sacred, and too holy.
The Town of Greece gives its chaplains no guidelines to discourage sectarian prayers, proselytization, or disparaging prayers. In turn, approximately two-thirds of the prayers offered at the town board meetings have explicitly Christian messages. These facts alone support the notion that the prayer which is offered by the Town of Greece violates the neutrality and separation that are embedded within the Establishment Clause. One remedy that has been suggested is to provide guidelines to those delivering the prayer. This “remedy” would be no remedy at all, as it would require the State itself to approve or disapprove of a religious message. Furthermore it has the potential for degrading religion by allowing a religious call to worship to be intermeshed with a secular call to order. “The Establishment Clause . . . stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.” As Petitioner rightly pointed out, the Court should not undertake the task of evaluating or parsing the content of any particular prayer, but Marsh is not the answer to a Constitutional issue that exists beyond the limited scope of legislative prayer. Relying on an “unbroken practice” of an entirely unrelated legislative body and the contention that the Town’s prayers did not seek to advance or disparage any one religion does not give assurances that there is no real threat in every situation in which government seeks to involve religion.
The prayers offered before town board meetings compel participation in a religious act.
Plaintiff-Respondents in Town of Greece—an atheist and a Jew—brought suit because they felt coerced to participate in prayers. When they declined to participate, they felt isolated, embarrassed, and humiliated when those around them stared. The plaintiffs need not show that they were compelled to believe in the message of the prayer—it is enough that the plaintiffs felt pressure to participate in a religion or its exercise. It is evident that the Town’s procedures of selecting chaplains of different faiths to deliver the invocation did little protect the rights of those present in the room. It is not possible to compel belief, visible behavior is all that the government could ever hope to compel. In the present case, people visibly participate in the religious practice of prayer by their posture. Simply standing, bowing your head, or closing your eyes is the outward manifestation of participation in prayer. Though a citizen present at the Town board meeting may find the message of a prayer to be objectionable, the citizen may nevertheless feel compelled to act in accordance with those around them to avoid prejudice, judgment and embarrassment. The Court has held that the government can neither force nor influence a person in religious matter. Influence can take many forms, such as pressure from authority figures, pressure of a minority group to conform to the majority, and the conditioning of benefits on participation. Ample evidence exists to prove that a coercive atmosphere does in fact exist in the Town of Greece’s board meetings. For example, those who are at the town meeting in order to make a request are eager to make a good impression. A citizen may feel pressure by that figure of authority to participate in the prayer, if for no reason other than avoiding offending a board member prior to an appeal. Furthermore, citizens who visibly decline to participate may draw unfavorable reactions from other citizens in the room. Additionally, the board members and the chaplain face the citizens when the prayer is delivered. This pressure, though subtle and indirect, can be as real as any overt compulsion. The Constitution guarantees that government may not coerce anyone to support or participate in religion. The question of coercion boils down to whether a person has a reasonable perception that he or she is being compelled by the State to pray in a manner that his or her conscience will not allow. The social-sciences are particularly helpful in elucidating this issue of coercion. Adults have been found to misrepresent their moral convictions in the face of competing views. Most adults will follow instructions, even deeply offensive or immoral ones, when they come from authority figures (PDF). Pressure from authority and from peers could not be more prevalent in this case. Citizens at the town board meetings in Greece face both the pressure to comply with the instructions and expectations of the authority figures at the front of the room, who will soon be passing judgment on citizens’ requests, and the pressure to follow the lead of everyone around them. If ever an atmosphere of coercion existed in a local government meeting, it is here.
It is not anti-religious to say that the government should stay out of the business of writing or sanctioning official prayers.
As Justice Kagan stated during oral arguments, when we approach the government, we do so not as a Christian, Jew, Muslim or nonbeliever, but only as an American. A citizen going to a local community board meeting that offers prayer is immediately forced to identify whether she belongs to the same religious idiom as other citizens in the room. It is inconsistent with the notion that when citizens relate to their government, they do so as an American, not as a follower or non-follower of a particular faith or belief. The Establishment Clause embodies a judgment, born of a long and turbulent history, that, in our society, religion must be a private matter for the individual, the family, and the institutions of private choice. The only remedy in this situation is to eliminate prayer from government proceedings altogether. It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves. If the Court were to have adopted this standard, it would have undoubtedly been viewed by many members of the public as anti-religious. The abolition of prayer before government proceedings, however, would not prevent the facilitation of opportunities to practice their religion, or even to acknowledge this country’s religious traditions and history. Such a remedy would, however, end the delicate debate surrounding government prayer and leave matters of religion untainted by the government and the courts.