681 F.3d 20 (2nd Cir. 2012), 10-3635-cv, Galloway v. Town of Greece

Docket Nº:10-3635-cv.
Citation:681 F.3d 20
Opinion Judge:CALABRESI, Circuit Judge:
Party Name:Susan GALLOWAY and Linda Stephens, Plaintiffs-Appellants, v. TOWN OF GREECE, Defendant-Appellee, and John Auberger, in his official capacity as Town of Greece Supervisor, Defendant.
Attorney:Ayesha N. Khan (Robert Shapiro, on the brief), Americans United for Separation of Church and State, Washington D.C., for Plaintiffs-Appellants. Joel Oster, Alliance Defense Fund (Kevin Theriot, Alliance Defense Fund, and Laurence D. Behr, Barth Sullivan Behr, on the brief), Leawood, Kan., for Def...
Judge Panel:Before: CALABRESI, WESLEY, and LYNCH, Circuit Judges.
Case Date:May 17, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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681 F.3d 20 (2nd Cir. 2012)

Susan GALLOWAY and Linda Stephens, Plaintiffs-Appellants,

v.

TOWN OF GREECE, Defendant-Appellee,

and

John Auberger, in his official capacity as Town of Greece Supervisor, Defendant. [*]

No. 10-3635-cv.

United States Court of Appeals, Second Circuit.

May 17, 2012

Argued: Sept. 12, 2011.

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[Copyrighted Material Omitted]

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Ayesha N. Khan (Robert Shapiro, on the brief), Americans United for Separation of Church and State, Washington D.C., for Plaintiffs-Appellants.

Joel Oster, Alliance Defense Fund (Kevin Theriot, Alliance Defense Fund, and Laurence D. Behr, Barth Sullivan Behr, on the brief), Leawood, Kan., for Defendants-Appellees.

Roy S. Moore, Benjamin D. DuPré, and John A. Eidsmoe, Foundation for Moral Law, Montgomery, Ala., for Amici Curiae Foundation for Moral Law in support of Defendants-Appellees.

Jeffrey C. Mateer, Hiram S. Sasser, III, and Justin E. Butterfield, Liberty Institute, Plano, Tex., for Amicus Curiae Liberty Institute in support of Defendants-Appellees.

Steven W. Fitschen and Douglas E. Meyers, The National Legal Foundation, Virginia Beach, Va., for Amicus Curiae WallBuilders Inc. in support of Defendants-Appellees.

Before: CALABRESI, WESLEY, and LYNCH, Circuit Judges.

CALABRESI, Circuit Judge:

Since 1999, the Town of Greece, New York, has begun its Town Board meetings with a short prayer. In 2008, town residents Susan Galloway and Linda Stephens brought suit against the town and Town Supervisor John Auberger in the United States District Court for the Western District of New York, asserting that aspects of this prayer practice violated the Establishment Clause. The district court (Charles J. Siragusa, J. ) granted the defendants' motion for summary judgment, and the plaintiffs appeal. We hold that, on this record, the district court erred in rejecting the plaintiffs' argument that the prayer practice impermissibly affiliated the town with a single creed, Christianity. Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

For the most part, the facts at issue are not disputed. The parties dispute how to characterize the facts, but they agree, in nearly every regard, as to the facts themselves.

The Town of Greece is a municipal corporation located in Monroe County, New York, just outside the city of Rochester. As of the 2000 census, the town had roughly 94,000 residents. An elected, five-member Town Board governs the town and conducts official business at monthly public meetings. At these meetings, the Board votes on proposed ordinances, conducts public hearings, bestows citizenship awards, swears in new town employees, and the like. Residents and town employees attend Town Board meetings to monitor and participate in these aspects of town

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governance. At times, children are among the residents attending town meetings; members of Boy Scout troops and other student groups have led the Pledge of Allegiance, and high school students may fulfill a state-mandated civics requirement necessary for graduation by going to Board meetings.

Before 1999, Town Board meetings began with a moment of silence. That year, at Auberger's direction, the town began inviting local clergy to offer an opening prayer. Typically, Auberger has called each meeting to order, the Town Clerk has called the roll of Board members, and Auberger has then asked the audience to rise for the Pledge of Allegiance. After the audience has been seated following the Pledge, Auberger has introduced the month's prayer-giver, who has delivered the prayer over the Board's public address system. Prayer-givers have often asked members of the audience to participate by bowing their heads, standing, or joining in the prayer. After the prayer's conclusion, Auberger has typically thanked prayer-givers for being the town's " chaplain of the month," at times also presenting them with a plaque. The town has consistently listed the prayer in each meeting's official minutes.

Between 1999 and June 2010, when the record in this litigation closed, the town did not adopt any formal policy regarding (a) the process for inviting prayer-givers, (b) the permissible content of prayers, or (c) any other aspect of its prayer practice. The town claims that anyone may request to give an invocation, including adherents of any religion, atheists, and the nonreligious, and that it has never rejected such a request. The town also asserts that it does not review the language of prayers before they are delivered, and that it would not censor an invocation, no matter how unusual or offensive its content. When Galloway and Stephens complained about the town's prayer practice in 2007, the town explained the above-mentioned practices. The town acknowledges, however, that it has not publicized to town residents that anyone may volunteer to deliver prayers or that any type of invocation would be permissible.

In practice, Christian clergy members have delivered nearly all of the prayers relevant to this litigation, and have done so at the town's invitation. From 1999 through 2007, every prayer-giver who gave the invocation met this description. In 2008, after Galloway and Stephens had begun complaining to the town about its prayer practice, non-Christians delivered the prayer at four of the twelve Town Board meetings. A Wiccan priestess and the chairman of the local Baha'i congregation each delivered one of these prayers, and a lay Jewish man delivered the remaining two. The town invited the Wiccan priestess and the lay Jewish man after they inquired about delivering prayers; it appears that the town invited the Baha'i chairman without receiving such an inquiry. However, between January 2009 and June 2010, when the record closed, all the prayer-givers were once again invited Christian clergy.

Although the town did not adopt, prior to June 2010, a formal policy concerning the selection of prayer-givers, it developed a more or less standard procedure. Three successive employees at the town's Office of Constituent Services had responsibility for inviting clergy to deliver prayers. The employee first charged with this task initially solicited clergy by telephoning, at various times, all the religious organizations listed in the town's Community Guide, a publication of the Greece Chamber of Commerce. Thereafter, this employee, Linda Sofia, compiled a " Town Board Chaplain" list containing the names

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of individuals who had accepted invitations to give prayers. Sofia and the two employees who succeeded her in this role testified that they worked their way down the list, calling clergy about a week before each Town Board meeting until they found someone willing to give the prayer. They also testified that they updated the list periodically based on requests from community members and on new listings in the Community Guide and a local newspaper, the Greece Post.

Until 2008, the " Town Board Chaplain" list contained only Christian organizations and clergy. Religious congregations in the town are primarily Christian. Galloway and Stephens have both lived in or near Greece for more than thirty years, and both testified that they were unaware of any non-Christian places of worship in the town. In the district court, the plaintiffs introduced a map indicating the presence of a Buddhist temple in the town as well as several Jewish synagogues located just outside the town. There is no indication, however, that these organizations were listed in the Community Guide or the Greece Post. The map illustrated, moreover, that almost all of the organizations on the town's prayer list, unlike the synagogues, were located within the town limits. In 2008, the town added to the list the Wiccan priestess, the lay Jewish man, and the Baha'i congregation leader mentioned above.

In all, there were roughly 130 different invocations between 1999 and June 2010, of which more than 120 are contained within the record.1 The invocations in the record typically gave thanks for aspects of the life of the town and requested assistance with the ongoing project of town governance. After being introduced, prayer-givers tended to begin with some variant of " let us pray," and then to speak about the matters for which " we" pray, ostensibly on behalf of the audience or the town more broadly. Members of the audience and the Board have bowed their heads, stood, and participated in the prayers by saying " Amen." On a few occasions, some members of the Town Board have made the sign of the cross.

A substantial majority of the prayers in the record contained uniquely Christian language. Roughly two-thirds contained references to " Jesus Christ," " Jesus," " Your Son," or the " Holy Spirit." Within this subset, almost all concluded with a statement that the prayer had been given in Jesus Christ's name. Typically, prayer-givers stated something like, " In Jesus's name we pray," or " We ask this in Christ's name." Some prayer-givers elaborated further, describing Christ as " our Savior," " God's only son," " the Lord," or part of the Holy Trinity. One prayer, for example, was given " in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever." Other prayers, including ones not expressly made in Christ's name, spoke of " the role of the Holy Spirit in our lives," and celebrated Christ's birth and resurrection.

The remaining third of the prayers spoke in more generically theistic terms. Christian clergy delivered prayers referring to " God of all creation," " Heavenly

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Father," and God's " kingdom of Heaven." The lay Jewish prayer-giver spoke of " God," the " Father," and the " Lord" ; he also referenced, at one point, " the songs of David, your servant." The Baha'i prayer-giver referred generally to " God," concluding his prayer with the Baha'i greeting, " Alláh-u-Abhá,"...

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