December 2013 Church & State | Featured

In the opening minutes of the oral argument before the U.S Supreme Court in the case of Town of Greece v. Galloway, Supreme Court Associate Justice Elena Kagan set a rather effective rhetorical trap for an attorney tasked with defending coercive government prayer.

“Suppose that as we began this session of the court, the chief justice had called a minister up to the front of the courtroom…” she said as she proposed a hypothetical for attorney Thomas G. Hungar, who was arguing on behalf of Greece, N.Y. “And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, ‘We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side.’ The members of the court who had stood responded ‘amen,’ made the sign of the cross, and the chief justice then called your case. Would that be permissible?”

Hungar walked right into the trap.

“I don’t think so, Your Honor,” he said. 

Yet that hypothetical is not so far removed from what Christian clergy, who were invited by the Greece Town Board to offer invocations before almost all meetings starting in 1999, actually said during some of those meetings. The problem was that Hungar, who works with the Alliance Defending Freedom (ADF), an Arizona-based Religious Right legal outfit founded by radio and television preachers, had maintained that the Supreme Court has no right to regulate the content of legislative prayers. 

On Nov. 6, Susan Galloway and Linda Stephens, who objected to the Greece Town Board’s policy of opening most meetings with overtly Christian prayers, made their case – with the help of Americans United – to the nine most powerful judges in the United States.

During the argument, the two sides and the justices went back and forth for an hour, and in the end the only conclusion was that legislative prayer is a complex problem with an unclear solution.

The path to the high court was a long one. Galloway, who is Jewish, began attending town board meetings frequently in 2005; Stephens, an atheist, started attending the sessions regularly in 2001.

Until 1999, the Greece board opened its meetings with a moment of silence. But that year, after 18 months in office, Town Supervisor John Auberger, a member of St. Lawrence Catholic Church and the Knights of Columbus, changed the policy so that meetings would open with a prayer given by a “chaplain of the month.”

The invocation was offered by designated individuals from 1999 until Americans United complained. During that period, all of the prayers were offered by Christian clergy with most being overtly Christian in nature. In 2008, following the complaint, there was a four-meeting hiatus from the usual prayer practice, but the board quickly returned to an all-Christian routine after that.

Galloway and Stephens decided in 2007 to take their complaint straight to Auberger, but he never met with them. Other officials told the two that their only options were to not listen to the prayers, step out into the hall or stop attending meetings.

Unsatisfied with those choices, Stephens and Galloway sought help from Americans United.

AU attorneys tried to settle the matter outside court. In July 2007 they sent a letter urging the town board to stop the prayers completely or choose invocations that are non-sectarian.

But the Greece board not only refused to change its ways, it became openly hostile to Galloway and Stephens – so they went to court.

The first court to hear the case didn’t side with the plaintiffs. In an Aug. 5, 2010, decision, U.S. District Judge Charles J. Siragusa dismissed the case, even though he acknowledged that the “vast majority of prayers…were offered by Christian clergy, and that many of them contained at least one reference to Jesus Christ.”

Nonetheless, Siragusa felt that the invocations “did not proselytize or advance any one [faith], or disparage any other, faith or belief,” so he concluded that there was no proof town officials intentionally excluded non-Christians.

Americans United appealed that decision and earned a very different outcome the second time. In a May 17, 2012, opinion, the 2nd U.S. Circuit Court of Appeals explained that the town’s procedures “virtually ensured a Christian viewpoint” because nearly all of the prayers were delivered by Christian clergy. The town violated the First Amendment, the unanimous three-judge panel said, by presenting a “steady drumbeat of often specifically sectarian Christian prayers.”

Judge Guido Calabresi, writing for the appellate panel, said, “We conclude that an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity” and that “a given legislative prayer practice, viewed in its entirety, may not advance a single religious sect.”

But that wasn’t the end of the matter. The ADF appealed to the Supreme Court, which in May decided to take the case. After months of preparation, Americans United and the ADF finally had their showdown in November.

AU’s core argument was simple: Local government isn’t like  Congress or even state legislatures. Many citizens have no choice but to attend local government meetings when they are seeking board action on community issues, taking an oath of office or receiving public honors. And because the attendance for these meetings is often small, everyone present can see who participates in a prayer and who does not. So anyone who comes to a government board wanting some sort of assistance could reasonably feel pressured to take part in an invocation simply to get in the board’s good graces.

The ADF, on the other hand, insisted that it is a tradition for government to solemnize meetings with an opening prayer, and freedom of religion dictates that courts don’t have the right to regulate the content of these prayers.

At oral argument, AU and Galloway and Stephens were represented by Douglas Laycock, a University of Virgin­ia law professor and highly regard­ed expert on religious freedom issues.

Several justices seemed sympathetic to Laycock’s argument, including Kagan. She said that when citizens petition government officials, their personal beliefs about religion should be irrelevant.

“[H]owever we worship, we’re all equal and full citizens…. And that means that when we approach the government, when we petition the government, we do so not as a Christian, not as a Jew, not as a Muslim, not as a nonbeliever, only as an American,” Kagan said.

Justices Sonya Sotomayor and Ruth Bader Ginsburg also seemed receptive to aspects of AU’s argument. While questioning Ian H. Gershengorn, who represented the Obama administration but argued on the side of Greece, Sotomayor asked: “So why do you think that someone who is sitting in a small room where hearings of this nature are being held, when the guy who’s the chairman of this legislative body, is about to rule on an application you’re bringing to him or her, why do you think any of those people wouldn’t feel coerced to stand?”

Ginsburg seemed to agree with the premise that local government is different from state and federal government because of the functions it performs.

“It’s not simply a legislature,” she said. “It has a number of administrative functions. Sometimes it convenes as a town meeting. Sometimes it entertains zoning applications.”

Justices Samuel A. Alito and Antonin Scalia, on the other hand, seemed less sympathetic to AU’s side. Alito didn’t appear to see any difference between town boards and state legislatures, which already offer court-approved prayers thanks to the Supreme Court’s 1983 decision in Marsh v. Chambers.

“It’s clearly a legislative body, is it not?” Alito asked. “The only – the difference is it’s a town rather than, than Con­gress or a state legislature where you have more formalized procedures.”

Scalia asked questions along similar lines, saying that even when elected officials are acting in their official capacity, they’re still citizens with the right to invoke a deity.

“They are there as citizens…,” he opined. “And these people perhaps invoke the deity at meals. They should not be able to invoke it before they undertake a serious governmental task such as enacting laws or ordinances?”

But the most important comments likely came from Justice Anthony M. Kennedy, the jurist most court observers look to as the swing vote in church-state cases.

Kennedy mulled the idea that local boards are somehow different from state or federal government.

“In a way it sounds quite elitist to say, ‘Well, now, we can do this in Washington and Sacramento and Austin, Texas, but you people up there in Greece can’t do that,’” he said.

Kennedy seemed troubled by the idea that Hungar’s argument was essentially “we’ve always done it this way.” He admitted this has “some force to it” but added, “It seems to me that your argument begins and ends there.”

However, Kennedy also fretted that requiring prayers to be non-sectarian might involve “the state very heavily in the censorship and, and the approval or disapproval of prayers.”

After the argument, both sides addressed the media on the plaza of the Supreme Court.

David Cortman, the ADF’s senior counsel, summed up Greece’s case for unregulated government prayers and criticized Galloway and Stephens.

“[W]hat plaintiffs really want in this case is censorship, and I think no one should be in favor of that,” he intoned. “I think when you have different prayer givers, they should have the liberty to pray according to the dictates of their faith tradition.”

Cortman also claimed that the Greece Town Board allowed any member of the community to give a pre-meeting invocation.

“[Greece] discriminated against none,” he said. “It allowed anyone to come on an equal basis.”

Laycock rejected Cortman’s censorship accusation and the supposed openness of the town board’s prayers.

“Most of what you just heard was false,” Laycock stated. “There is no rotation system….The only instructions they were given was to call a pastor, call a pastor. They had no one but Christian pastors. I’ve defended many Christians in my career. I support their free exercise rights. I support their free speech rights. I do not support their right to use the power of government to impose on religious minorities, and that’s what’s going on here.”

Galloway and Stephens also addressed the media.

“I feel that the town has aligned itself with Christianity by having just Christian prayer givers,” Galloway said. “They had a couple other people, but primarily, it’s Christian. That’s very sectarian. And as a citizen, I felt that I was, I was different, because of my own faith and my own religious beliefs.”

Stephens called on Greece to go back to the moment of silence it once used, saying it included everyone.

Ayesha N. Khan, AU’s legal director who oversaw the Greece litigation in the lower courts and argued in front of the appeals court, explained why Americans United took the case in the first place.

“We brought this lawsuit because the town of Greece has chosen to thumb its nose at this long-standing historical and constitutional tradition that has served us so well,” she told reporters. “Under the town’s view, residents who come to participate in these meetings could be asked to join in a prayer that promises eternal hellfire to anyone who does not accept Jesus Christ as their savior. That can’t possibly be constitutional.”

All participants were reluctant to speculate on the outcome of the case, which won’t likely be known until sometime in June 2014. However, Americans United Executive Director Barry W. Lynn underscored how proud he is of AU’s involvement.

“It’s very difficult to say how this will turn out,” Lynn remarked. But regardless of the outcome, I’m proud of Susan and Linda for taking a stand in defense of the U.S. Constitution, and I’m proud that Americans United had the honor of representing them.”