___ U.S. ___ (2014), 12-696, Town of Greece, New York v. Galloway

Docket Nº:12-696.
Citation:___ U.S. ___, 134 S.Ct. 1811, 188 L.Ed.2d 835, 82 U.S.L.W. 4334, 24 Fla.L.Weekly Fed. S 736
Party Name:TOWN OF GREECE, NEW YORK, Petitioner v. Susan GALLOWAY ET AL.
Attorney:Thomas G. Hungar, Washington, DC, for Petitioner. Ian H. Gershengorn, for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner. Douglas Laycock, Charlottesville, VA, for Respondents. Douglas Laycock, University of Virginia School of Law, Charlottesville, VA...
Judge Panel:KENNEDY, J., delivered the opinion of the Court, except as to Part II— B. ROBERTS, C. J., and ALITO, J., joined the opinion in full, and SCALIA and THOMAS, JJ., joined except as to Part II-B. ALITO, J., filed a concurring opinion, in which SCALIA, J., joined. THOMAS, J., filed an opinion concurri...
Case Date:May 05, 2014
Court:United States Supreme Court

Page ___

___ U.S. ___ (2014)

134 S.Ct. 1811, 188 L.Ed.2d 835, 82 U.S.L.W. 4334




No. 12-696.

United States Supreme Court

May 5, 2014

Argued November 6, 2013


[134 S.Ct. 1813] Syllabus [*]

Since 1999, the monthly town board meetings in Greece, New York, have opened with a roll call, a recitation of the Pledge of Allegiance, and a prayer given by clergy selected from the congregations listed in a local directory. While the prayer program is open to all creeds, nearly all of the local congregations are Christian; thus, nearly all of the participating prayer givers have been too. Respondents, citizens who attend meetings to speak on local issues, filed suit, alleging that the town violated the First Amendment's Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers. They sought to limit the town to "inclusive and ecumenical" prayers that referred only to a "generic God." The District Court upheld the prayer practice on summary judgment, finding no impermissible preference for Christianity; concluding that the Christian identity of most of the prayer givers reflected the predominantly Christian character of the town's congregations, not an official policy or practice of discriminating against minority faiths; finding that the First Amendment did not require Greece to invite clergy from congregations beyond its borders to achieve religious diversity; and rejecting the theory that legislative prayer must be nonsectarian. The Second Circuit reversed, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity.


The judgment is reversed. 681 F.3d 20, reversed.

JUSTICE KENNEDY delivered the opinion of the Court, except as to Part II—B, concluding that the town's prayer practice does not violate the Establishment Clause. Pp. 1818 -1825, 188 L.Ed.2d, at 845-852.

(a) Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 77 L.Ed.2d 1019. In Marsh, the Court concluded that it was not necessary to define the Establishment Clause's precise boundary in order to uphold Nebraska's practice of employing a legislative chaplain because history supported the conclusion that the specific practice was permitted. The First Congress voted to appoint and pay official chaplains shortly after approving language for the First Amendment, and both Houses have maintained the office virtually uninterrupted since then. See id., at 787—789, and n. 10, 103 S.Ct. 3330, 77 L.Ed.2d 1019. A majority of the States have also had a consistent practice of legislative prayer. Id., at 788—790, and n. 11, 103 S.Ct. 3330, 77 L.Ed.2d 1019. There is historical precedent for the practice of opening local legislative meetings with prayer as well. Marsh teaches that the Establishment Clause must be interpreted "by reference to historical practices and understandings." County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 670, 109 S.Ct. 3086, 106 L.Ed.2d 472 (opinion of KENNEDY, J.). Thus, any test must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. The Court's inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures. Pp. 1818 -1820, 188 L.Ed.2d, at 845-847.

(b) Respondents' insistence on nonsectarian prayer is not consistent with this [134 S.Ct. 1814] tradition. The prayers in Marsh were consistent with the First Amendment not because they espoused only a generic theism but because the Nation's history and tradition have shown that prayer in this limited context could "coexis[t] with the principles of disestablishment and religious freedom." 463 U.S., at 786, 103 S.Ct. 3330, 77 L.Ed.2d 1019. Dictum in County of Allegheny suggesting that Marsh permitted only prayer with no overtly Christian references is irreconcilable with the facts, holding, and reasoning of Marsh, which instructed that the "content of the prayer is not of concern to judges, " provided "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." 463 U.S., at 794-795, 103 S.Ct. 3330, 77 L.Ed.2d 1019. To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents' contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech. In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from the prayer's place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation's heritage. From the Nation's earliest days, invocations have been addressed to assemblies comprising many different creeds, striving for the idea that people of many faiths may be united in a community of tolerance and devotion, even if they disagree as to religious doctrine. The prayers delivered in Greece do not fall outside this tradition. They may have invoked, e.g., the name of Jesus, but they also invoked universal themes, e.g., by calling for a "spirit of cooperation." Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation. See 463 U.S., at 794-795, 103 S.Ct. 3330, 77 L.Ed.2d 1019. Finally, so long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. Pp. 1819-1825, 188 L.Ed.2d, at 847-852.

Justice Kennedy, joined by The Chief Justice and Justice Alito, concluded in Part II—B that a fact-sensitive inquiry that considers both the setting in which the prayer arises and the audience to whom it is directed shows that the town is not coercing its citizens to engage in a religious observance. The prayer opportunity is evaluated against the backdrop of a historical practice showing that prayer has become part of the Nation's heritage and tradition. It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens. Furthermore, the principal audience for these invocations is not the public, but the lawmakers themselves. And those lawmakers did not direct the public to participate, single out dissidents for [134 S.Ct. 1815] opprobrium, or indicate that their decisions might be influenced by a person's acquiescence in the prayer opportunity. Respondents claim that the prayers gave them offense and made them feel excluded and disrespected, but offense does not equate to coercion. In contrast to Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467, where the Court found coercive a religious invocation at a high school graduation, id., at 592—594, 112 S.Ct. 2649, 120 L.Ed.2d 467, the record here does not suggest that citizens are dissuaded from leaving the meeting room during the prayer, arriving late, or making a later protest. That the prayer in Greece is delivered during the opening ceremonial portion of the town's meeting, not the policymaking portion, also suggests that its purpose and effect are to acknowledge religious leaders and their institutions, not to exclude or coerce nonbelievers. Pp. 1824 -1828, 188 L.Ed.2d, at 852-855.

Justice Thomas, joined by Justice Scalia as to Part II, agreed that the town's prayer practice does not violate the Establishment Clause, but concluded that, even if the Establishment Clause were properly incorporated against the States through the Fourteenth Amendment, the Clause is not violated by the kind of subtle pressures respondents allegedly suffered, which do not amount to actual legal coercion. The municipal prayers in this case bear no resemblance to the coercive state establishments that existed at the founding, which exercised government power in order to exact financial support of the church, compel religious observance, or control religious doctrine. Pp. 1815 - 1819, 188 L.Ed.2d, at 863-867.

KENNEDY, J., delivered the opinion of the Court, except as to Part II— B. ROBERTS, C. J., and ALITO, J., joined the opinion in full, and SCALIA and THOMAS, JJ., joined except as to Part II-B. ALITO, J., filed a concurring opinion, in which SCALIA, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA, J., joined as to Part II. BREYER, J., filed a dissenting opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.


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