July/August 2013 Church & State | Featured


The morning of May 20 was a hectic one for Susan Galloway and Linda Stephens.

The two upstate New York women are plaintiffs in a lawsuit that the U.S. Supreme Court was asked to take, and they had been waiting since April to see what the court would do. At 9:30 a.m. that day, Stephens and Galloway checked for an update on SCOTUSblog, an Internet site that details all things Supreme Court.

A quick glance and they had their answer: the justices announced that they had accepted the case.

“I was amazed,” Stephens told Church & State. “What goes on at the U.S. Supreme Court seems pretty far re­moved from my life in upstate New York.”

Later this year, the highest court in the United States will hear oral arguments in Town of Greece v. Galloway, a case that Americans United brought on behalf of the two residents who objected to the Greece Town Board’s practice of inviting Christian clergy to open its meetings with sectarian prayers.

Even though a federal appeals court sided against the Rochester suburb’s board, the Supreme Court chose to review its first legislative prayer case in a generation thanks in part to the Religious Right’s extraordinary campaign for intervention.

The last time the Supreme Court took on legislative prayer was 30 years ago in Marsh v. Chambers. In that case, Nebraska state legislator Ernest Chambers challenged the legislature’s chaplaincy policy, claiming it was an unconstitutional government endorsement of religion.

But in a 6-3 decision, the court said the chaplain’s position and activities, including leading pre-meeting prayers, did not violate the Constitution – mostly on the basis of historic tradition.

Ayesha N. Khan, Americans Uni­ted legal director, said the Greece case could have as significant an impact as Marsh.

Marsh established that official prayer is allowed, but left some questions unanswered,” she told Church & State. “It did not, for example, indicate whether or how it applies to meetings of city and county councils, which operate very differently than state legislatures.”   

AU’s plaintiffs said they are well aware of why their case matters.

“I believe that the separation of church and state is for the good of all religions,” Galloway, a passionate advocate for peace, justice and equality, told Church & State. “I think that it protects religions from government and government from religions.”

Stephens, a retired librarian, expressed a similar sentiment.

“I’m glad that I had the gumption to get involved in the case, because I know the importance of church-state separation,” she said.

This all started many years ago. 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 the “chaplain of the month.”

The invocation was offered by designated individuals from 1999 until Americans United complained, and all the prayers in that period were said by Christian clergy with most invocations 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 essentially said the only options were to not listen to the prayers 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 sending a letter urging the town board to stop the prayers completely or choose invocations that are nonsectarian.

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 plaintiffs Galloway and Stephens. 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 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.”

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.”

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.”

But that, of course, wasn’t the end of the matter.

The Alliance Defending Freedom (ADF), an Arizona-based Religious Right legal outfit founded by radio and television preachers, serving as counsel for the Greece board, asked the entire 2nd Circuit Court to hear the case.

When that request was denied, the ADF and its allies turned their attention to the Supreme Court, enlisting an army of high-profile Religious Right sym­pathizers to flood the court with am­icus briefs, including pleas from a gaggle of U.S. House members (three of whom are no longer in Congress) and a group of 18 state attorneys general.

In January, 49 politicians including Tea Party darling Michele Bachmann (R-Minn.), Religious Right stalwarts Trent Franks (R-Ariz.), Jim Jordan (R-Ohio), Steve King (R-Iowa) and Louie Goh­mert (R-Texas), and Congression­al Prayer Caucus leader Randy Forbes (R-Va.), tried to sell the Sup­reme Court on the idea that legislative prayer should be protected simply because it is a tradition.

In an amicus brief authored by the right-wing Family Research Council (FRC) on behalf of the representatives, they argued that 97 percent of congressional prayers are Christian, and that is acceptable under church-state separation. The first prayer offered in the Continental Congress, they noted, was offered in the name of Jesus and would not pass muster under the 2nd Circuit’s decision.

The House members also said that courts are not qualified to intervene in matters of theology.

“There are no objective legal criteria,” the brief said, “for differentiating sectarian statements from nonsectarian ones.” Quoting an appellate court ruling, they said, “Whether invocations of ‘Lord of Lords’ or ‘God of Abraham, Isaac, and Mohammed’ are ‘sectarian’ is best left to theologians, not courts of law.”

But AU’s Khan said neither of those points should be an excuse for a government to endorse one religion over all others.

“First, the Continental Congress predates the Constitution, so that claim would appear to be moot,” Khan told Church & State. “Second, you don’t have to be clergy or to decide any theological questions to conclude that an invocation made in Jesus’ name is aligned with Christianity.”

In a separate brief, the attorneys general from Indiana, Alabama, Ark­ansas, Arizona, Montana, Virginia, Colorado, New Mexico, South Caro­lina, Texas, Utah, Michigan, Idaho, Kan­sas, Oklahoma, Nebraska, Florida and Mississippi joined the Religious Right crusade.

Indiana Attorney General Gregory Zoeller authored the brief, and he, too, cited tradition as a reason for upholding legislative prayers, while also claiming that there is a great deal of “confusion, contradiction and chaos” re­sulting from various lower court rulings.

A few state lawmakers wanted in on the act, so Arizona House Speaker Andrew Tobin (R-Paulden), Alabama House Speaker Mike Hubbard (R-Au­burn) and Arizona Senate President An­dy Biggs (R-Gilbert) submitted a brief arguing that legislative prayer should be upheld because it is both widespread and traditional. The brief was authored by Peter Gentala, a former ADF attorney and graduate of TV preacher Pat Robertson’s Regent Law School.

Some ultra-conservative religious leaders also seemed determined to lobby on behalf of Greece. Their brief, written by Kelly Shackelford of the right-wing Liberty Institute, argued that courts should stay away from regulating government-sponsored prayers. Signers included Southern Baptist Theological Seminary President Dr. Albert Mohler, Dr. Peter A. Lillback (author of Wall of Misconception, an entire tome attacking church-state separation) and Dr. Wayne Grudem (author of Politics According to the Bible).

The high profile of this case even stirred the Rev. Robert E. Palmer, whose position as Nebraska legislative chaplain had been challenged in the Marsh case. He filed an amicus brief urging the court to hand down clearer rules so towns can continue to sponsor prayer.

In addition to their official court filings, Religious Right militants also waged a media campaign. Mischaracterizing Americans United as “a group of secular extremists,” Tony Perkins, head of the FRC, asked the Supreme Court to uphold “religious freedom” – the Religious Right’s euphemism for preferential treatment for religion.

“Given the long tradition of legislative prayer in America, there’s plenty of reason to be optimistic about the case,” Perkins said in a blog post. “If our friends at ADF prevail, there’s a strong possibility that the Court will not only affirm public prayer but significantly strengthen the religious freedom rights of all Americans.”

In a separate column, FRC’s Ken Klukowski, who heads that organization’s Center for Religious Liberty, said this case will show whether or not the Supreme Court is on the side of Christians. 

“Ever since Justice Samuel Alito took the seat of Justice Sandra Day O’Connor, scholars have wondered if the Court had become friendlier to people of faith, especially Christians,” Klu­kow­ski said. “Now they will find out.”

That comment didn’t sit well with Khan.

“The court should be neutral on matters of faith,” she said.

For Galloway and Stephens, there has been a great deal of support to offset those antagonists.

“My family and friends think that I was correct to challenge that Greece town prayer practice, and have been very supportive throughout the whole process,” Galloway said. “I had discussed the issue with my family before ever starting the lawsuit to gauge their feelings on the issue and bringing the lawsuit. Whenever people question or confront the status quo there can be a backlash. I wanted to make sure that they were okay with that possibility.”

Stephens said she has heard from many friends “from as far away as Maine and Georgia, who learned about it in their local papers and are totally excited.” Her mother may be another story.

“I think my 90-year-old mother in Michigan doesn’t know quite what to make of this,” Stephens said. “The court cases that she usually follows are ones reported on by Nancy Grace.”

The issue of legislative prayer is not, however, quite as straightforward as the Religious Right and its allies would like you to believe. In fact, Gallo­way isn’t even the only legislative prayer case to come under review this year.

In March, a U.S. District Court said the Pittsfield County, Va., board of supervisors had violated the U.S. Constitution when it permitted prayers delivered by rotating members of the board that almost always included explicit references to Christianity.

But that same month, a panel of the 9th U.S. Circuit Court of Appeals said the Lancaster, Calif., city council did not violate the Constitution with its prayer practice, which allows prayers to be delivered by randomly chosen clergy from all faiths. The content of the invocations is unrestricted. 

Such rulings that are seemingly at odds may be a reflection of the rapidly changing attitudes toward religion in America. The religious landscape is becoming more diverse, with Muslims, Hindus, Buddhists and Pagans adding new theological approaches to the Jewish, Catholic and myriad Protestant traditions that have long prospered in the United States.

While many still subscribe to a specific faith, recent polls show more Americans than ever have no religi­ous preference, a fact that makes policy decisions about governmental prayer practices difficult.

In 2012, the Pew Forum on Religion and Public Life found that 19.6 percent of U.S. adults say they have no religious affiliation, up from 15.3 percent in 2007. The study also found generational differences: 32 percent of those ages 18-29 said they are unaffiliated, compared with just 9 percent unaffiliated over the age of 65. The overall number of Christians has also fallen slightly since 2007, from 78 percent then to 73 percent in 2012.

When lawmakers try to reflect this diversity in legislative prayers, it doesn’t always go as planned. In May, Arizona Rep. Juan Mendez (D-Phoenix), an atheist, gave a non-theistic invocation to open an Arizona House session. He made no mention of God in his invocation, which he gave simply because it was his turn in the rotation.

That didn’t sit well with Rep. Steve Smith (R-Maricopa), who said an extra prayer the following day in order to “apologize” to God. He asserted that Mendez should have skipped his turn if he didn’t want to offer a “real” prayer.

Another poll found that more and more Americans want less and less religion in government. A Pew Forum survey released in March found 38 percent of Americans said politicians spend too much time praying and expressing faith, up from 29 percent who felt that way in 2010.

The survey even found that there has been an increase in this sentiment across party lines. The biggest spike came from people who identify as Democrats, 46 percent of whom said politicians talk too much about faith (up from 32 percent in 2010).

Dissatisfaction is also growing among people who identify as Republicans, 24 percent of whom said candidates spend too much time on religion. In 2001, only 8 percent of Republicans had the same concern.

Charles Haynes, a scholar at the First Amendment Center, says that the high court is unlikely to overturn Marsh. The justices may, he said, mandate general, universal “to-whom-it-may-concern” prayers that, in the end, satisfy no one (and exclude the nonreligious).  They could also mandate a rotating schedule of invocations delivered by members of every faith and belief system in the United States.

Writing in a syndicated column, Haynes asserted, “What the Supreme Court must not do, however, is allow any government body to endorse one faith over others by opening meetings with Christian prayers week after week. If ‘no establishment’ under the First Amendment means anything, it means at least this: The government may not take sides in religion.”

Oral arguments in the case are set for November or December, with a decision expected by June 2014. Until then, AU will have its hands full with preparation.

Americans United Executive Director Barry W. Lynn said all of these issues simply illustrate the urgent need for church-state separation and a government that respects all. 

“Given the growing diversity of thought in the United States, it seems clear that more and more people won’t stand for sectarian prayers at government meetings,” he said. “Nor should they have to, which is why we hope the Supreme Court will place some limits on government invocations.”