Church and State

Public Prayer Heads to the Supreme Court


The town board in Greece, N.Y.

Photograph by Heather Ainsworth for Bloomberg Businessweek

The town board in Greece, N.Y.

The town board in Greece, N.Y., began its July 16 meeting in the usual way, with Supervisor John Auberger inviting a Christian minister to say a prayer. Nathan Miller of Northridge Church asked God to guide the proceedings, invoking “Your son, Jesus.”

The Rochester suburb’s public prayers are now the focus of a U.S. Supreme Court case that may redefine the legal limits on religious expression at official functions across the country. The case will mark the first time the court has considered prayers by legislatures since it upheld the practice 30 years ago. Two Greece residents have waged a five-year campaign against the prayers, arguing that the town’s board goes beyond what the justices allowed in 1983 and violates the Constitution by endorsing Christianity. “Government should be inclusive,” says Susan Galloway, 51, one of the women challenging the practice. “There are people who don’t believe, and they’re part of this country, too. We all have a right to be part of it and not feel excluded.”

The town counters that it hasn’t shut out members of other faiths. Officials say the opening prayer has at times been delivered by a Jewish man, a Bahai leader, and a Wiccan priestess who invoked Apollo and Athena. “People from other faiths did volunteer, which is great,” says one of Greece’s lawyers, Brett Harvey of the Alliance Defending Freedom. “The town has no problem with any of that.”

The case, which the justices will probably hear in November or December, will test the impact of changes to the court’s composition over the past decade. The high court has taken up religion cases only sparingly since John Roberts became chief justice in 2005. In perhaps the biggest ruling, a 5-4 decision in 2010, it revived a federal law designed to protect a Christian cross erected as a war memorial on public land. “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” Justice Anthony Kennedy wrote in the court’s lead opinion in that case. Supporters say public prayer has been a widespread practice since the country’s founding—and was not called into question when the First Amendment, adopted in 1791, barred the “establishment of religion” by the government. The vast majority of state legislative bodies open the day with some kind of prayer, as do both houses of Congress.

Ayesha Khan, a lawyer with Americans United for Separation of Church and State who represents the challengers, says many of those legislatures take steps to ensure the invocations are nonsectarian. Not so in Greece. “It’s not unusual for legislative bodies to ask guest prayer-givers to pray in an inclusive fashion, and that’s exactly what we’re asking for here,” Khan says.

Galloway, who is Jewish and has lived in Greece since 2000, says she grew uncomfortable after repeatedly hearing Christian prayers at board meetings. She and her friend Linda Stephens, an atheist who’s lived in Greece since 1970, sought to discuss the issue with Auberger. Instead, they say his staff told them they could leave the room during the invocation. Auberger declined to comment, referring questions to the town’s lawyers.

Galloway and Stephens sued in February 2008, saying the town was “sponsoring persistent sectarian—and almost exclusively Christian—prayers.” Until that year, they said in their complaint, the town selected the person to lead its monthly prayer from a list of 37 clergy members, all from Christian churches. From 2004 to February 2008, more than three-quarters of the prayers were explicitly Christian, according to the lawsuit. “There’s too much mixing of Christian conservative religion and town politics,” Stephens says. The town says it accepts volunteers of any faith; in 2008, non-Christians delivered a prayer four times.

The New York-based 2nd U.S. Circuit Court of Appeals said the town’s prayer practice “must be viewed as an endorsement” of Christianity, violating the Constitution. The selection process “virtually ensured a Christian viewpoint,” the three-judge panel found. “The town had an obligation to consider how its prayer practice would be perceived by those who attended town board meetings,” Judge Guido Calabresi wrote for the court.

Greece says the 1983 Supreme Court decision, Marsh v. Chambers, permits legislative prayers as long as the government doesn’t discriminate in selecting the people who say them or use the practice to proselytize or disparage a faith. The town has the backing of Robert Palmer, the Presbyterian minister whose prayers before the Nebraska state legislature were at issue in the 1983 case. In court papers, he said his prayers were “more identifiably Christian” than those in Greece. “It’s clear that the Constitution allows the government to open its meetings by invoking divine guidance,” says Harvey, the lawyer for the town. “And once you do that, you need to let people pray consistent with the dictates of their own conscience.”

The bottom line: For the first time in three decades, the high court will rule on the limits of religious expression at official meetings.

Stohr is a reporter for Bloomberg News in Washington.

Later, Baby
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