Susan Galloway v. Greece

• Decision Date: 05 August 2010
• Docket Number: No. 08-CV-6088 CJS(P),08-CV-6088 CJS(P)
• Parties: Susan GALLOWAY and Linda Stephens, Plaintiffs, v. TOWN OF GREECE and John Auberger, in his official capacity as Town of Greece Supervisor, Defendants.
• Court: U.S. District Court — Western District of New York

732 F.Supp.2d 195

Susan GALLOWAY and Linda Stephens, Plaintiffs,

v.TOWN OF GREECE and John Auberger, in his official capacity as Town of Greece Supervisor, Defendants.

No. 08-CV-6088 CJS(P).

United States District Court,

W.D. New York.

Aug. 5, 2010.

Ayesha N. Khan, Americans United for Separation of Church and State, Washington, D.C., David G. Jay, Buffalo, NY, for Plaintiffs.

J. Michael Johnson, Alliance Defense Fund, Shreveport, LA, Laurence D. Behr, Barth, Sullivan & Behr, Buffalo, NY, for Defendants.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. § 1983 ¹, in which the plaintiffs, Susan Galloway and Linda Stephens ("Plaintiffs"), allege that the practice of the Town of Greece's ("Defendant" or "the Town") of opening Town Board meetings with prayer violates the Establishment Clause of the First Amendment to the United States Constitution. Plaintiffs, who are Jewish and Atheist, respectively, maintain that the Town has "aligned itself with" Christianity, because the vast majority of clergy selected to give prayers at town board meetings were Christian. In this regard, Plaintiffs contend that the Town has intentionally excluded non-Christians from offering prayers at meetings. Additionally, Plaintiffs contend thatthe town has impermissibly allowed "sectarian" prayer by members of both Christian and non-Christian faiths.

Now before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, Defendants' motion for summary judgment is granted, Plaintiffs' motion for summary judgment is denied, and this action is dismissed.

BACKGROUND

Defendant is a municipal corporation located in Monroe County, New York. Defendant John Auberger ("Auberger"), who is being sued in his official capacity, has, at all relevant times, been the elected Supervisor of the Town. At all relevant times the Greece Town Board has met once each month. Prior to 1999, the Town observed a moment of silence at the start of Town Board meetings. In 1999, the Town began inviting local clergy to offer oral prayer at the start of Board meetings. Auberger instituted this practice after observing that the Monroe County Legislature started its sessions with prayer. At all relevant times the Moment of Prayer was listed as part of the Board's meeting agenda.

The Town has no written policy concerning prayer at Board meetings. The Town has never set any guidelines concerning the content of prayers, and has never asked to review the wording of prayers prior to their delivery at Town Board Meetings. Town Officials state that they would not censor an invocation, even if it was offensive, or even if it was not a prayer in the traditional sense. Firkins Dep. 187, 231-232, 249-251; Auberger Dep. 174-189.² For example, the Town has indicated that Atheists are welcome to offer "prayers." The Town maintains that anyone who expressed an interest in giving an invocation at a Town Board meeting would have been permitted to do so, without having to provide any information concerning the content of the prayer. The Town has never rejected a request to offer a prayer. At the same time, however, the Town has never publicized that individuals are welcome to offer prayers.

Religious groups in the Town ³ are predominantly Christian. Stephens Dep. at 29. In that regard, although Plaintiffs have each lived in the Town more than thirty years, neither was personally familiar with any mosques, synagogues, temples, or other non-Christian places of worship within the Town. See, Stephens Dep. at 28-30; Galloway Dep. at 36-37. More specifically, neither Galloway, Stephens, or Auberger for that matter, were aware of any Jewish, Muslim, Mormon, Buddhist, or Hindu houses of worship in the Town. Galloway Dep. at 36; Stephens Dep. at 28-29; Auberger Dep. at 63-64, 109.

At all relevant times, responsibility for inviting clergy to deliver prayers at Board meetings was delegated to the Town's Office of Constituent Services ("Constituent Services").⁴ Three Constituent Services clerical employees, Linda Sofia ("Sofia"),Geri Wagoner ("Wagoner"), and Michele Fiannaca ("Fiannaca"), were responsible for this task at different times.

March 1999-February 2005

Sofia was the first employee given the job of inviting clergy to give prayers at Town Board meetings, and she performed that duty for most of the period at issue in this lawsuit, from approximately March 1999 until approximately February 2005. (Defendants' Statement of Undisputed Facts [# 33-3] ¶ ¶ 17, 21). Sofia arranged for clergy to give invocations by telephoning religious organizations that were listed in the "Community Guide," a directory published periodically by the Greece Chamber of Commerce. Sofia randomly called organizations listed in the Community Guide until she found a clergy member who was willing to give an invocation. The record does not contain copies of the actual Community Guide(s) published during the relevant period that Sofia performed this task. Instead, the record contains only a copy of a Community Guide dated "Spring/Summer 2006," published after Sofia ceased performing the task of inviting clergy. (Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 6). Defendants produced this copy as part of discovery, but indicate that they do not know from where this particular document came. (Defendants' Supplemental Discovery Responses, Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 8, response no. 10) ("Defendants do not know who provided this exact document.").

Sofia states that she never intentionally failed to contact any organization listed in the Community Guide. (Defendants' Statement of Undisputed Facts [# 33-3] ¶ 17). On this point, Sofia, who was not deposed as part of this action, states in an affidavit: "I did not intentionally omit any church, but called all churches on the list until I was able to find a person who agreed to give a short invocation at the meeting. However, my recollection ⁵ of who I called and when is not clear at all." (Sofia Aff. [# 33-11] ¶ 5). Sofia indicates that she never declined to contact an organization based on its religious affiliation. ( Id. at ¶ 7).

In or about January 2003, Sofia began keeping a list of all clergy who agreed to give prayers at Town Board Meetings. (Defendants' Appendix to Local Rule 56.1 Statement, Exhibit 14, numbered pages 32-35). Sofia referred to the document as her "Town Board Chaplains" list, and indicates that the list was not intended to include all potential clergy, but only those who had accepted her invitations to give invocations. (Sofia Aff. [# 33-11] ¶ 6) ("I recorded the name of the person who agreed to give the short invocation. My list was not a list of all potential prayer-givers, but only those persons who I called and who agreed to give the invocation.").

Between March 1999 and February 2005, representatives of the following religious organizations gave invocations at Town Board meetings: Greece Assembly of God (14 times); First Bible Baptist Church (9 times); West Side Baptist Church (4 times); Holy Name of Jesus Church (2 times); Our Mother of Sorrows Church (8 times); St. John the Evangelist Church (1 time); St. Charles Borromeo Church (2 times); St. Lawrence Church (3 times); English Road Alliance Church (4 times); Shepherd's Heart Christian Fellowship (7 times); Hope Lutheran Church (1 time); Aldersgate United Methodist Church (4 times); Lakeshore Community Church (3 times); New Testament ChristianChurch (1 time); and John Knox Presbyterian Church (1 time).⁶

As noted earlier, the record does not contain contemporaneous Community Guide listings of religious organizations for the period 1999 through 2005. However, all of the religious groups listed above appear in the Spring/Summer 2006 Community Guide that is contained in the record. The 2006 listing also contains a number of religious groups that did not give invocations during the period March 1999 through February 2005, and specifically: Greece Baptist Church, Latta Road Baptist Church, Our Lady of Mercy Church, St. Mark's Church, Trinity Episcopal Church, Northgate Bible Chapel, Lutheran Church of Concord, Messiah Lutheran, Greece United Methodist Church, Park Ridge Free Methodist, Wesley United Methodist Church, Church of Jesus Christ of Latter Day Saints, Immanuel Church of the Nazarene, Trinity Church of the Nazarene, Victory Community Church, The Good News Community Church, Lawson Road Church of Christ, New Way Christian Faith Center, Calvary Chapel of Greece, Abundant Life Worship Center, Bethany Presbyterian, Covenant Orthodox Presbyterian, Lakeview Community Church, and Parma Greece United. (Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 6). It is unclear whether any of these groups were listed in the earlier version(s) of the Community Guide that Sofia actually used. However, to the extent that they were, Sofia maintains that she would have called them to invite a representative to give a prayer, and that if a representative did not give a prayer, and thus did not appear on the Town Board Chaplains list, it was because he or she declined to do so. (Sofia Aff. [# 33-11] ¶ ¶ 4-5, 7; Sofia Aff. [# 37-5] ¶ 4).

March 2005-December 2006

Between approximately March 2005 and "some time prior to 2007," Wagoner was given the responsibility for inviting clergy to deliver invocations at Town Board meetings. (Defendants' Statement of Undisputed Facts, ¶ ¶ 21, 25). Like Sofia, Wagoner was not deposed as part of this litigation, however, she too provided an affidavit. (Wagoner Aff. [# 33-12] ). When Wagoner assumed the job from Sofia, Sofia gave Wagoner her Town Board Chaplains list, which as discussed above, was a list of all individuals who had agreed to give prayers since January 2003. Subsequently, Wagoner used Sofia's Town Board Chaplains list to contact clergy. Wagoner may also have used the Community Guide, although she does not specifically remember doing so.^FN7FN8 (...