June 7, 2013

What Should the Supreme Court do With Town Board Prayers in Galloway v. Town of Greece? A Liberty-Based Analysis That Bolsters the Second Circuit’s Equality-Based Ruling

By Professors Vikram Amar and Alan Brownstein for Justia's Verdict.

Last week the U.S. Supreme Court granted review in an important case involving the First Amendment’s Establishment Clause, Galloway v. Town of GreeceGalloway involves a decade-plus- long practice in the upstate New York Town of Greece of starting Town Board meetings with a short prayer.  Before 1999, the Town (which has slightly fewer than 100,000 residents) began Board meetings with a moment of silence.  But since then, it has been inviting local clergy to offer an opening prayer after the Pledge of Allegiance has been recited. Prayer-givers deliver their prayer over the Board’s public address system, and many have asked members of the audience to bow their heads, stand, or join in the prayer during its recitation.  The Town asserts that anyone—followers of any religion, agnostics, and atheists alike—can request to offer an invocation, and that it has never turned down any request.  But in practice, Christian clergy have given nearly all the prayers since 1999, and have been invited to do so by the Town, which often calls them “chaplain[s] of the month.”

As fellow Verdict columnist Marci Hamilton pointed out last week in her analysis of this case, the U.S. Court of Appeals for the Second Circuit (with esteemed Judge Guido Calabresi writing) invalidated the Town’s practice, finding that the prayers, in context, had to be understood as a public endorsement of Christianity, which violated the First Amendment’s ban on laws respecting an establishment of religion.  We agree with much of Judge Calabresi’s reasoning, but in the space below we offer additional reasons—ones we feel the Second Circuit did not adequately explore—to be skeptical about what the Town has been doing.

The Town of Greece’s Practice Does Implicate Religious Equality Values

Disputes about the recitation of prayers before town board or city council meetings implicate many values underlying the Establishment Clause. The Second Circuit’s opinion, which focused on the so-called endorsement test, spoke primarily in terms of religious equality.  And there are powerful equality-based grounds for challenging the town of Greece’s government-sponsored prayers. For these constitutional purposes, equality means not only equality in material benefits but also equality of status and respect. This has been clear since the Court declared in Brown v. Board of Education that physically comparable but separate public schools that are segregated by race violated the equal protection clause because of the message of inferior status they communicated to African-American children. When government bodies select leaders of majoritarian religions to lead sectarian prayers to open local governmental proceedings, while ignoring the beliefs of other citizens, the message of lack of worth and disrespect for minority religions and the non-religious would be hard to avoid.

To be sure, there is nothing intrinsically disrespectful about being asked to stand while prayers of a different faith than our own are being offered. Most of us have probably been asked to do so when attending a wedding, bar mitzvah or other religious event in the house of worship of neighbors and friends. In those situations, however, we are guests in the sanctuary of a different faith community.  As outsiders, we do not expect our different religious identities to be recognized. There is no pretense that the rituals being observed reflect our own religious commitments. But citizens of a town or city are not guests and outsiders at the public meetings of their government. They belong to the political community and, quite reasonably, resent being treated as strangers who are not being shown the same respect afforded to its favored members.

And the Town has been essentially discriminating against minority religious voices. By focusing on majoritarian sects—the Town drew some prayer leaders from a list of congregations printed in the Chamber of Commerce’s directory—the Town effectively excluded religious adherents who live in the Town but who lack the numbers to establish a physical congregation within the community.  Oftentimes, as in the area surrounding UC Davis, where we both teach law, religious practitioners may have an insufficient number of members to establish a congregation in their own town, and for that reason they worship in a congregation in a neighboring town.  But if each town used only a directory of congregations located within that town as the source of clergy to be invited to lead prayers at Board meetings, many religions would be left out.

Equality Is Not the Only Establishment Clause Value at Stake Here, and Town Councils Differ From State Legislatures

As powerful as the equality concerns in this case are, they should not cause us to overlook the important religious liberty concerns that are also raised in this dispute. Plaintiffs argued that the prayers at Board meetings were coercive, but the Second Circuit opinion, construing these arguments to be focused only on children, quickly rejected these claims in a footnote. Plaintiffs were adults, the court reasoned, and the prayers at the Town Board meeting here were no more coercive than the prayers offered at sessions of the Nebraska state legislature that the U.S. Supreme Court upheld against an Establishment Clause challenge in Marsh v. Chambers in 1983. We think the court was far too quick to dismiss these religious liberty concerns on the authority of the Marsh decision.

There are critical distinctions between city councils and state legislatures that produce very different kinds of audiences who attend the meetings of these different government bodies. Most of what a state legislature does involves the formulation and enactment of general legislation that impacts large groups and constituencies. There may be some narrow bills that address limited issues, but the majority of the state legislature’s work relates to laws of significant breadth and scope. By contrast, the work of a city council, in most of the towns and cities of the United States, regularly deals with decisions affecting small groups and individuals. Land-use decisions impact individual neighbors and neighborhoods. Funding decisions may burden particular small constituencies. Often town councils and boards act as administrative tribunals in a quasi- adjudicatory capacity, hearing personnel grievances or land use appeals. Thus, these local government meetings are much more likely to be focused on particular individuals than are the general laws that state legislatures consider at their sessions.

Moreover, and related to these differences, citizens who watch the deliberations of the state legislature from the gallery are almost always passive observers of the government’s functions. They have no role to play in the legislative process. Citizens who attend city council meetings do so for very different reasons. Usually they are not passive witnesses attending the sessions to be better informed about government operations. They attend council meetings to participate in government by speaking to the Council during public comment periods. They want and expect to be seen and heard by the Council. Their goal is to influence decisionmakers, not to simply observe or monitor them. For that reason, the ability to address the Council in person is an important right of political participation.

Finally, outside of major metropolitan areas, there are stark difference between the size and format of state legislative chambers and sessions, and those of city councils. State legislators rarely know who is sitting in their legislative galleries. The size of the chambers and the number of legislators and visitors preclude any such knowledge or sense of familiarity.  Not so, in the small meeting rooms of a city council, where the physical proximity between the Council and the audience and the limited number of participants make it far easier for Council members to be aware of their audience.

Because of these differences, the decision in Marsh tells us very little about the coercive nature of government-sponsored prayer at city council meetings. In the setting of a city council meeting, citizens who wish to address the council are coerced when they are asked to stand or otherwise affirm the prayer that is being offered in their name. A failure to comply would risk alienating the very political decisionmakers whom they hope to influence.

The Town of Greece provides a good illustration.  Citizens there who feel excluded and burdened by the Board meeting’s prayers have no good alternatives. They can try to arrive at the council session after the pledge and prayer have been completed—but they may stand out in a small council meeting room for doing so. It would be even more awkward to stay and recite the pledge and affirm their loyalty to our country, leave for the prayer, and then return after the prayer is over. Or they can sacrifice their religious liberty by agreeing to have someone appointed by the government pray in their name. Visitors sitting in the gallery at the state legislature experience no such vulnerability or pressure.

Why the School Analogy Doesn’t Undercut Galloway’s Liberty Claims

Some commentators and jurists point to the school setting and argue that it suggests that coercion-based arguments depend upon the malleability of the listener.  They read the school cases for the proposition that state-sponsored prayer is unconstitutional in the context of public schools only because children, on account of their age and maturity, are uniquely susceptible to indoctrination and the pressure to conform.  By contrast, adults attending city council meetings, it is suggested, should be capable of withstanding such compulsions. This argument is unpersuasive. The major problem with religious coercion is not that it may actually change people’s religious beliefs and practices. It is that when religious individuals defy the state’s coercive efforts, they suffer burdens and penalties for doing so. Religious coercion is as unconstitutional when it fails as it is when it succeeds.

Prayer in the public schools is distinctively problematic, but not just because it is directed at children. It is particularly dangerous because teachers and administrators have so much discretionary power over the students in their charge. Both students and their parents know that it is treacherous to alienate school personnel because retaliation is so easy to mete out and hard to prove.

Citizens attending city council meetings for the purpose of influencing the council’s decision confront a similar burden that does not dissipate with age or maturity. The decisions of a city council often involve substantial political discretion in weighing the competing concerns of relatively small constituencies. Citizens who refuse to join in prayers offered by clergy invited by the council risk overtly or subconsciously retaliatory rulings.

A Final, Particular Way in Which the Town of Greece’s Practice Offends Liberty

The Town of Greece’s approach to public prayer at issue in this case involves a particularly egregious affront to religious liberty. There are at least two kinds of prayers that an organization may use to begin a session or meeting.  In one kind of prayer, the speaker prays in his or her own name for G-d’s blessing to be given for the meeting and its participants. There is a religious liberty issue implicated here, in that individuals may feel that they should not be required to be present while a prayer is expressed. The weight of that burden may be somewhat mitigated, however, by the fact that many people do not experience the fact that someone else is offering a prayer for their well-being as a burden on their liberty—even if the person who is doing the praying is of a different faith.

But a far greater affront to religious liberty occurs when the second kind of prayer is undertaken.  In this kind of prayer, the speaker claims to be offering a collective prayer expressing the beliefs of the audience, a collectivity to which audience members are asked to acquiesce by standing or bowing their heads. The decision about when and how to speak to G-d, and the words one chooses in that expression, belong to the individual. It is an extraordinary intrusion into the religious liberty of the individual for the state to usurp those decisions. The state cannot tell people that as a condition to attending and commenting during a city council meeting, they have to delegate to the state the power to appoint someone to pray to G-d in their name.

This basic commitment to personal religious autonomy is the foundation of the American understanding of religious liberty. When colonial proponents of religious liberty argued that religious freedom was an inalienable right, they were speaking literally, not figuratively. It made no sense to suggest that a person could somehow surrender his relationship with and duty to G-d to a government official, or to anyone else for that matter. Throughout the Great Awakening and continuing on to the ratification of the Constitution, advocates of religious liberty insisted on the right of the individual to choose who would minister to his or her spiritual needs and lead him or her in worship. Established religions violated these principles of religious liberty—and thereby prompted the First Amendment—precisely because they employed the coercive power of government to influence the private judgment of the individual in matters of religion.

Coercive collective prayer at city council meetings undermines religious equality by discriminating against minority faiths. And it abridges religious liberty by insinuating the state into the individual’s relationship with G-d and compelling people to engage in prayer that lacks personal authenticity. The Constitution prohibits the state from engaging in such practices.