By Lisa Soronen

Justice Anthony Kennedy is better known for his rhetorical flair that his practical guidance. But his 5-4 opinion Monday in Town of Greece v. Galloway provides a roadmap for how state legislatures and local governments can stay out of trouble when beginning sessions and board meetings with a prayer.

This case doesn’t change as much for state legislatures as it will for local governments in some states, but it does clarify that Marsh does not stand for the proposition that legislative prayer must be nonsectarian. 

So how far can you go (down the path of sectarian prayer)?  

While anyone could give a prayer at a Town of Greece board meeting, from 1999-2007 all prayer givers were Christian. Some referred to Jesus in their prayers. The town recruited “board chaplains” from a local directory and nearly all congregations were Christian. Clergy crafted their own messages without any input from the town.   

Susan Galloway and Linda Stephens argued  legislative prayer cannot contain sectarian language or themes such as the “death, resurrection, and ascension of the Savior Jesus Christ.” They also argued that prayers before town board meetings “create social pressures that force nonadherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board.” Kennedy’s majority opinion rejected both arguments.

In Marsh v. Chambers, in 1983, the court held the Nebraska Legislature didn’t violate the First Amendment by opening its sessions with a prayer delivered by a chaplain paid from state funds. According to the majority, the proposition that Marsh allows only nonsectarian prayer “is irreconcilable with the facts of Marsh and with its holding and reasoning.” 

The confusion that Marsh might allow only nonsectarian prayers was caused by a footnote explaining that the chaplin in Marsh stopped referring to Christ after a Jewish state legislator complained. But this footnote, the court explained, merely observed that the minister was trying to appeal to or not offend those he served.   

Now for the first piece of practical advice. The court warned, sectarian prayers can go too far “[i]f the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”

Galloway and Stephens argued that in terms of coercion, prayer in the town board meeting context is fundamentally different than prayer in the state legislative context because citizens can only address state legislatures by invitation, but citizens often attend town board meetings because they have business before the board.

But prayers in both contexts aren’t intended for the public but for the lawmakers “who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.” 

Here is the second piece of practical advice (more relevant to local governments): Coercion could be possible though “if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.”

Justices Clarence Thomas and Antonin Scalia didn’t join the court’s coercion analysis but joined the court’s judgment. They opined that First Amendment coercion exists only “by force of law and threat of penalty.” The court’s “liberal” justices dissented:  Justice Elena Kagan’s opinion was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer, who also wrote separately.  

Lisa Soronen is executive director of the State and Local Legal Center. She writes frequently on U.S. Supreme Court cases for the NCSL Blog.


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