Understanding the Greece v. Galloway Decision
On Monday, the Supreme Court ruled (5-4) in Town of Greece, NY v. Galloway that sectarian prayer before a legislative session does not violate the Establishment Clause of the First Amendment.
Since 1999, the town of Greece, NY has been inviting local clergy to lead a prayer before monthly town board meetings. Susan Galloway and Lisa Stephens (respondents) sued the Town of Greece, claiming that the town violated the Establishment Clause by preferring Christianity over other prayer leaders and in sponsoring sectarian prayer.
Justice Anthony Kennedy, writing for the majority, analyzed the facts of the case alongside precedent set in Marsh v. Chambers (1983). He notes that “Marsh is sometimes described as ‘carving out an exception’ to the Court’s Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to ‘any of the formal ‘tests’ that have traditionally structured’ this inquiry. The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause.” Thus, because such a practice has existed since the Establishment Clause was written, it is consistent with the original intent of the Framers.
In her dissent, Justice Elena Kagan notes that the majority is “right that, under Marsh, legislative prayer has a distinctive constitutional warrant by virtue of tradition.” However, Justice Kagan found that the town’s practice “does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in government.” Further in the opinion, Kagan also expresses (rightful) concern about the potentiality of ‘religious tests’ being reintroduced under the guise of societal pressure to fit in and please the government officials (especially the local ones) that citizens need to engage with and often need services from.
This decision has the potential to instate a form of “majority-rule” religious representation, to the extent that individuals of minority faiths might be ignored or ostracized – a direct denial of the religious liberty and church-state separation that the United States was founded on and symbolizes for so many people around the world.
Writing in the SCOTUSblog symposium on this case, First Amendment scholar Erwin Chemerinsky decries the Court’s decision which in his view “essentially held that there is an exception to the Establishment Clause of the First Amendment for prayers before legislative sessions. The Court’s decision is inconsistent with any theory of the Establishment Clause except one that gives little meaning to the separation of church and state.”
The Union for Reform Judaism, the Central Conference of American Rabbis, and Women of Reform Judaism joined an amicus brief in this case, arguing that “sectarian prayer is not even-handed and open to all; in reality, it often is good for one group only, and that group is the religious majority.”
In response to the Court’s decision, Rabbi David Saperstein, Director and Counsel of the RAC, issued a statement decrying what this decision means for religious freedom in this country and noting Justice Kennedy’s opinion which suggested that requiring invocations be nonsectarian would call on the legislatures sponsoring these prayers and the courts to intervene and “act as supervisors and censors of religious speech.” Rabbi Saperstein also remarked that “An individual’s religious belief – or non-belief – ought not be a prerequisite to accessing the political process. The Greece v. Galloway decision undermines the fundamental American principle of equal participation in government, regardless of the faith of the individual.”
We are starting to learn how this decision will apply. The Court has not ruled on legislative prayer since Marsh, and it looks like the Roberts Court is continuing the precedent set by the Rehnquist Court in reinterpreting the critical protections the Religion Clauses of the First Amendment promise to all American citizens. As Justice Kagan put it, “When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”
Maintaining the separation of church and state and the Establishment Clause ensures religious free exercise rights for all (and vice versa!).