In Town of Greece v. Galloway (2014) __U.S.__, 134 S.Ct. 1811, published May 5, 2014, the U.S. Supreme Court upheld summary judgment granted for the defendant town in a lawsuit that challenged the prayers delivered at city council meetings. Because most of the houses of worship in the town were Christian, most of the volunteer clergy who delivered the prayers were Christian. Some of the clergy delivered prayers that were sectarian. The plaintiffs alleged that this conduct violated the Establishment Clause of the First Amendment to the United States Constitution.
All of the justices held that the Establishment Clause permits sectarian prayer at city council meetings. The court applied the Establishment Clause test formulated in Marsh v. Chambers (1983) 463 U.S. 783, which held that opening state legislature sessions with a prayer by a chaplin did not violate the Establishment Clause. Under Marsh, the Establishment Clause is interpreted by reference to historical practices and understandings.
Justices Kennedy, Roberts, Alito, Scalia, and Thomas held that the history of the Establishment Clause does not support barring sectarian prayers, and that involving government as supervisors and censors of religious speech would violate the Clause. Absent a pattern of prayers that over time denigrates other faiths, proselytizes, or betrays an impermissible government purpose, the majority held, a challenge based solely on the content of a prayer is unlikely to establish a constitutional violation. The majority further held that so long as the town maintained a policy of nondiscrimination, and made reasonable efforts to permit any faith to provide a prayer, it did not contravene the Establishment Clause by inviting a predominantly Christian set of ministers to deliver prayers. Kennedy, Roberts, and Alito also rejected the argument that the prayers were unduly coercive because citizens coming before the council who did not participate in prayers might feel singled out. If town board members had directed the public to participate in the prayers, singled out dissidents, or indicated that their decisions might be influenced by whether the person prayed, the result might be different. Offense the dissenters might feel did not equate to coercion. A pattern of prayers might show coercion that might violate the Establishment clause.Justices Alito and Scalia wrote separately to emphasize that the Establishment Clause does not call for generic prayers.
JusticesThomas and Scalia wrote separately to opine that the Establishment Clause does not apply to cities; and that in any event the prayers were not coercive in the sense of the prayers that the founding fathers found objectionable.
Justices Breyer, Kagen, Ginsberg, and Sotomayor, dissenting, opined that the prayers in this case were too sectarian, that too little effort was made to locate non-Christian clergy, and that under the circumstances the prayers were coercive.
It is unclear how Town of Greece will be applied in California courts, in light of the California Constitution’s broader provisions guaranteeing “free exercise and enjoyment of religion without discrimination or preference” (art. I, § 4) and prohibiting governmental aid to religion (art. XVI, § 5.) See Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863. Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194, which holds that the First Amendment of the U.S. Constitution bars sectarian invocations at city council meetings, seems unlikely to survive the ruling in Town of Greece.
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