Town Hall prayer violates Establishment Clause

For years, a Town Board in upstate New York started most of its board meetings with Christian prayer. Is this legal? This issue is not as easy as you think. The Court of Appeals in this case says it violates the Establishment Clause. But the Second Circuit employes a totality-of-the-circumstances test, and results in your town may differ.

The case is Galloway v. Town of Greece, decided on May 17. The Town Board started off its meetings this way from 1999 through 2010. The Town said that anyone was invited to give religious prayers, but the public did not really know this, as the Town did not publicize its "policy." Instead, the Town Board selected candidates for prayer by contacting houses of worship in the Town. The problem is that religious congregations in town were primarily Christian. Plaintiffs -- two residents who objected to the Christian prayer --testified that they were unaware of any non-Christian houses of worship in the Town of nearly 100,000 residents.

The Second Circuit (Calabresi, Wesley and Lynch) notes that the Supreme Court in Marsh v. Chambers (1983) said that Congress could start its legislative sessions with prayer. Judge Calabresi walks us through other Establishment Clause cases that only confirm how complicated this area of Constitutional law has been over the years. But I am not here to write a law-review article. The Court of Appeals distills the following rules from the cases:

First, a given legislative prayer practice, viewed in its entirety, cannot advance a single religious sect. Second, the government may use pro-religious prayers at the start of its legislative sessions. Otherwise, the government runs the risk of appearing to be hostile toward religion. Whether legislative prayer violates the Establishment Clause requires a totality-of-the-circumstances test.

The Town loses this case for a number of reasons. First, as the town is only drawing from religious institutions within its borders, "the process for selecting prayer-givers virtually ensured a Christian viewpoint."  Judge Calabresi writes, "The town fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town. Such residents may be members of congregations in nearby towns or, indeed, may not be affiliated with any congregation. The town is not a community of religious institutions, but of individual residents, and, at the least, it must serve those residents without favor or disfavor to any creed or belief."

Second, while the town says that any religious prayer is welcome at its meetings, the public is unaware of this. "Absent any effort on the part of the town to explain the nature of its prayer program to attendees, the rare handful of cases, over the course of a decade, in which individuals from other faiths delivered the invocation cannot overcome the impression, created by the steady drumbeat of often specifically sectarian Christian prayers, that the town’s prayer practice associated the town with the Christian religion."

Finally, the Court of Appeals deems it relevant that most prayer-givers "appeared to speak on behalf of the town and its residents, rather than on behalf of themselves." They would request that the audience participate in the prayer. In addition, the town supervisor would sometimes thank them for being "our chaplain of the month." The inference here is that someone in the audience would think that the prayer-givers are speaking on behalf the Town Board.