For Susan Galloway and Linda Stephens, patience pays.
In May, after a five-year legal fight, Galloway and Stephens finally got what they wanted: a federal court decision against sectarian prayers before board meetings in the Town of Greece, N.Y.
“It’s been hard waiting for these decisions,” Galloway told Church & State. “It’s a long process. It’s tiring.”
It was also worth it. In a May 17 decision, the U.S. 2nd 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.”
That “steady drumbeat” is a departure from the past for the Town of Greece. In the 1980s, monthly meetings opened with nothing more than a moment of silence, Stephens told Church & State. But for more than a decade, the town, which is eight miles outside Rochester and has a population approaching 100,000, seems to have created an environment that is hostile to those who don’t support Christianity, as Stephens and Galloway would discover.
Galloway, who is Jewish, began attending town board meetings frequently in 2005 because she wanted to discuss an issue related to local cable-access television. Stephens, an atheist, started attending the sessions regularly in 2001 because she disapproved of some land development plans.
Galloway said she was struck “right away” by her local government’s prayer practice, in which clergy opened the meetings with an act of worship. The board did not require that the invocations be inclusive or non-sectarian, and official records showed that between 1999 and June 2010, about two-thirds of the 120 recorded prayers contained references to “Jesus Christ,” “Jesus,” “Your Son” or the “Holy Spirit.”
Between 2004 and 2008, an exceedingly small number of non-Christians were invited to deliver the opening invocation, court records said, while all prayers between January 2009 and June 2010 were given by Christian ministers.
“The prayers alienated me from the start,” Stephens said. “First, because I am an atheist, but also because I thought it was just a ploy of the politicians in office to curry favor from the Christian pastors in town.”
Galloway said the invocations were particularly galling for her on one occasion when everyone in attendance was asked to stand, and she simply didn’t want to. It immediately made her stick out.
“It was a very crowded room, and all these eyes were looking at me,” she said.
Galloway and Stephens knew each other through their local chapter of the National Organization for Women, and they began discussing their feelings about the situation when local press covered the issue.
Galloway, who served as the lead plaintiff in Galloway v. Town of Greece, said her past in particular motivated her to stand up for her beliefs.
Until age 12, she lived in the mostly Christian town of McHenry, Ill., a suburb of Chicago. Other kids there would say “Ew!” when they saw her eating sandwiches made with matzo at Passover or would ostracize her when she complained about singing Christian songs for school choir programs.
“People don’t realize how hard it is to be a minority faith,” Galloway said.
So when the Greece policy rankled, Galloway and Stephens decided in 2007 to take their complaint straight to Town Supervisor John Auberger. Or so they thought. They ended up meeting with two other town officials who were unhelpful.
We were basically informed, said Galloway, “You can either not listen to the prayers or you can leave the meetings.”
Unsatisfied with those options, Stephens and Galloway sought help from Americans United, which tried to settle the matter outside court. In July 2007, the AU Legal Department sent a letter urging the Town Board to stop prayers or choose prayers that are nonsectarian.
Citing precedent, AU’s letter noted that the Supreme Court “has made clear that legislative prayer is permissible only if it is nonsectarian – in other words, only if it does not use language or symbols specific to one religion.”
But Greece not only refused to change its ways, prompting a lawsuit, it became openly hostile to Galloway and Stephens. In October 2007, Pastor Vince DiPaola opened a meeting with a direct attack, saying those who oppose prayer before government meetings are “in the minority and they are ignorant of the history of our country.”
And yet, when the lawsuit was filed in February 2008, Auberger claimed that the board had an inclusive policy.
“The opportunity to say a prayer at our meeting is available to any Greece resident,” he told the Greece Post. “We do not control the content of the prayers given, nor do we place restrictions or guidelines on these prayers.”
Auberger’s position was unsupported, however, by the facts: Greece officials chose clergy to recite prayers from a list that is overwhelmingly Christian, according to court records.
Nonetheless, the first court to hear the case didn’t side with plaintiffs Galloway and Stephens. In an Aug. 5, 2010, decision, the U.S. District Court for the Western District of New York dismissed the case.
“The court has considered the nature of the prayers,” wrote Judge Charles J. Siragusa, “and finds that they did not proselytize or advance any one, or disparage any other, faith or belief. It is undisputed that the vast majority of prayers at issue in this case were offered by Christian clergy, and that many of them contained at least one reference to Jesus Christ.
“Otherwise, though, most of the prayers that plaintiffs maintain are sectarian,” he continued, “are indistinguishable from prayers that they say are non-sectarian. Some of the allegedly sectarian prayers contain no reference to Jesus or any other deity. None of the allegedly sectarian Christian prayers disparaged other religions or attempted to convert anyone.”
Siragusa also wrote that “there is no evidence that policymaking town officials were aware that non-Christian groups were allegedly being excluded.”
Both Galloway and Stephens were disappointed by the defeat, and Stephens took it hard because she experienced “quite a bit of flak for sticking my neck out about this issue.” She said someone came by her house during the night, dug up her mailbox, and placed it on top of her car. In another incident, part of a fire hydrant was thrown in her pool. She also said she received an anonymous letter suggesting she leave Greece, and several people in town stopped talking to her.
But on the other side, the Alliance Defense Fund (ADF), a Religious Right legal group founded by TV and radio preachers that represented the town, celebrated the interim win.
“America’s founders opened public meetings with prayer,” ADF Senior Legal Counsel Joel Oster said in a statement. “Public officials today should be able to do the same. Opening public meetings with prayer has always been lawful in America, and the court here affirmed that it still is today.”
While there may be a tradition of opening meetings with prayers, the ADF ignored some very important details, says Americans United Legal Director Ayesha N. Khan, who argued the case for the plaintiffs
“Our challenge was not to having prayer generally,” she said, “but to having prayer that was overwhelmingly specific to a particular religion.”
The victory turned out to be short lived for the ADF. Americans United appealed and earned a very different outcome the second time.
Judge Guido Calabresi, writing for the 2nd Circuit 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 Calabresi didn’t stop there. He disagreed with the town’s claims that clergy who gave prayers were not there due to an official invitation, noting that Auberger thanked many who delivered invocations for being “our chaplain of the month.”
The judge also noted that despite Auberger’s claim that anyone was welcome to deliver a prayer, the town admitted in court “that it has not publicized to town residents that anyone may volunteer to deliver prayers or that any type of invocation would be permissible.”
Calabresi also offered advice that any government body with a prayer policy would be wise to heed.
“People with the best of intentions may be tempted, in the course of giving a legislative prayer, to convey their views of religious truth, and thereby run the risk of making others feel like outsiders,” he wrote. “Even if all prayergivers could resist this temptation, municipalities with the best of motives may still have trouble preventing the appearance of religious affiliation.
“Ours is a society splintered, and joined, by a wide constellation of religious beliefs and non-beliefs,” he continued. “Amidst these many viewpoints, even a single circumstance may appear to suggest an affiliation. To the extent that the state cannot make demands regarding the content of legislative prayers, moreover, municipalities have few means to forestall the prayer-giver who cannot resist the urge to proselytize.
“These difficulties may well prompt municipalities to pause and think carefully before adopting legislative prayer,” he concluded, “but they are not grounds on which to preclude its practice.”
Both Stephens and Galloway were very pleased with the outcome.
“It feels great that we won,” Galloway said. “It makes me glad that Susan and I persevered.”
The ADF was not so thrilled.
“Since this nation’s founding, public meetings have been opened with prayers offered according to the conscience of the speaker,” Oster said, according to the Rochester Democrat and Chronicle. “There is no legal reason why a town cannot engage in this practice today with people from within its own community.”
The fight apparently will continue. Jeff McCann, chief of staff for the town, said he “is disappointed by the appellate court ruling,” according to the Democrat and Chronicle. The town, he indicated, will ask the full circuit court to hear the case (en banc).
If that fails, Greece may ask the U.S. Supreme Court to review the decision, McCann said.
AU’s Khan speculated that it is unlikely that the 2nd Circuit would hear the case en banc because the court rarely does so, and because the original opinion of the court was unanimous.
She also said it is unlikely that the Supreme Court would take the case because the issues and arguments are nearly identical to those in Joyner v. Forsyth County, another case that AU won. The Supreme Court declined to take Joyner in January. (For more on that case, see “The Forsyth Saga, Final Chapter” in the March 2012 issue of Church & State.)
Regardless of what happens next, Americans United views the circuit court verdict as an important win for religious liberty.
“The court got it right the second time around,” AU Executive Director Barry W. Lynn said. “Government meetings should welcome everyone. When government plays favorites with faith, it clearly leaves some people out.”
The win in Greece is the second government-sponsored prayer case in recent months that has gone in favor of Americans United. On May 15, the U.S. District Court for the District of Delaware said the Sussex County Council must change its policy of opening meetings with sectarian prayers. (For a report on that case, see “Success In Sussex,” page 9.)
These wins should go a long way in teaching governments what they can and can’t do in terms of legislative prayer, Khan said.
“I think governments are learning the parameters of what is permitted for legislative prayer and what isn’t,” she said. “What started with isolated cases has coalesced in clearer law.”
To Stephens, clearer legal precedent means greater hope for church-state separation.
“Separation of church and state is an extremely important issue,” she said. “In this day and age, it is unbelievable what some of these churches want the government to do, and we have lots of politicians ready to do the church’s bidding.”