Are prayers before public meetings OK? Supreme Court to decide.

The US Supreme Court on Monday agreed to examine whether offering a prayer before a town meeting violates the First Amendment’s separation of church and state.

The issue in Town of Greece v. Galloway (12-696) is whether city officials violated the First Amendment’s ban on government endorsement of a particular religion when it set up a system that allowed local volunteers to offer a prayer prior to the town’s monthly meetings.

Although non-Christians delivered a few of the prayers, the vast majority of volunteers offered – and delivered – pre-meeting prayers that featured Christian religious references.  

At least two regulars at town meetings objected to being forced repeatedly to listen to Christian prayers. They complained to town officials that they felt marginalized by the town’s prayer policy.

One of the complaining residents in the New York town was Susan Galloway, who is Jewish. The other was Linda Stephens, an atheist.

After the town refused to change its prayer policy, the two filed suit in federal court. They said that by consistently presenting Christian prayers prior to its meetings, the town was intentionally discriminating against non-Christians. They also argued that the pre-meeting prayers were advancing a single faith over other religions or nonreligion.

A federal judge disagreed and dismissed the case. On appeal, the Second Circuit Court of Appeals reversed. The Town of Greece, the appeals court ruled, had aligned itself with a single religion in violation of the First Amendment’s Establishment Clause.

“Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice, and nearly all of the prayers thereafter,” the appeals court said.

It added that “the rare handful of cases, over the course of a decade, in which individuals from other faiths delivered the invocation, cannot overcome the impression, created by the steady drumbeat of often specifically sectarian Christian prayers, that the town’s prayer practice associated the town with the Christian religion.”

This put audience members at town meetings who are nonreligious or non-Christian in an awkward position, the court said.

The town defended its prayer policy, saying it was neutral and nondiscriminatory. The town created a list of anyone who might be willing to present a prayer prior to the town meeting. An official went through the list until someone agreed to deliver a prayer.

“Members of many different religious traditions accepted the opportunity to offer a prayer, including Catholics, Protestants from several denominations, a Wiccan priestess, the chairman of a local Bahai congregation, and a lay Jewish man,” Washington lawyer Thomas Hungar wrote in his brief on behalf of the town, urging the high court to take up the case.

“Under the town’s policy, atheists and non-believers were equally welcome to volunteer to give an invocation,” Mr. Hungar said. Anyone could deliver a prayer, and town officials refused to police the content of a prayer or attempt to gauge its religiosity.

Ayesha Khan, a lawyer with Americans United for Separation of Church and State, said in her brief to the court that the town board “exploited its prayer opportunity to advance one faith to the exclusion of others.”

Ms. Khan, who is representing the two complaining residents of Greece, said the town’s prayer practice violates the constitutional command that government remain neutral in matters of faith.

“With the exception of a four-meeting hiatus around the time of the filing of this lawsuit in 2008, the Town has relied exclusively on Christian clergy, who have persistently delivered overtly Christian prayers,” she wrote.

“Clergy request that attendees join in the prayers. Town Board members participate by bowing their heads, standing, responding ‘Amen,’ or making the sign of the cross,” she said. “Members of the audience do the same.”

In asking the high court to hear the case, Hungar said there was a split within the federal appeals courts concerning the correct test judges must apply to determine if a legislative prayer crosses the line.

He said the Fourth Circuit in Richmond, Va., and the Second Circuit in New York had both embraced an approach that requires courts to determine if a pre-meeting prayer has an impermissible effect on a reasonable observer.

In contrast, he said, a 1983 Supreme Court decision requires judges to determine only whether a pre-meeting prayer was being used to proselytize, advance, or disparage a particular faith. Under that case, there is no requirement to examine the content of the prayer and its possible effect on a listener, he said.

This more permissive approach, Hungar said, had been embraced by appeals courts in the 11th Circuit in Atlanta and the Ninth Circuit in San Francisco.

Hungar said the case is of importance nationwide. The Second Circuit decision, he said, would require public officials to engage in pre-meeting critiques of future invocations.

“The frightening prospect of state officers acting as official censors of prayers delivered voluntarily by private citizens (or even paid chaplains) has no basis in this Nation’s tradition or this Court’s jurisprudence,” he wrote.

Khan disputed the existence of a significant split among the appeals courts. Differences in appellate court decisions, she said, were due to factual differences in each case.

She rejected the charge that the Second Circuit decision would lead to more litigation and confusion.

In a friend-of-the-court brief, 18 states encouraged the court to hear the case and overturn the Second Circuit decision. “It is important that the Court address the growing split over this issue before it becomes yet another irredeemably muddled sector of Establishment Clause doctrine,” Indiana Solicitor General Thomas Fisher wrote.

“The lack of clarity in this area is especially troubling to the extent it leaves courts to delve into questions best left to theologians, not courts of law,” he said.