May 2019 Church & State Magazine | Featured

Five years after the U.S. Sup­reme Court’s Town of Greece v. Galloway decision that set new standards for invocations at municipal meetings, communities, courts, legislative chambers and even Congress continue to wrestle with the opinion’s implications.

“Even though Greece made clear that government bodies must not discriminate based on religion in selecting people to deliver invocations, must not permit invocations that proselytize or disparage any religion, and must not pressure members of the public to take part in invocations, some government officials have continued to engage in these unconstitutional practices,” said Americans Uni­ted Associate Legal Director Alex J. Luchenitser. “That violates the religious freedom of people who desire to participate in fundamental functions of our democracy.”

Greece v. Galloway was a federal lawsuit brought by Americans United on behalf of Susan Galloway and Linda Stephens, two women from Greece, a town of nearly 100,000 people in upstate New York. Galloway, who is Jewish, and Stephens, an atheist, challenged the town board’s practice of opening public meetings with exclusively Christian prayers.

AU Legal Team and Plaintiffs at SCOTUS

(PHOTO: AU's Greece v. Galloway team outside the Supreme Court: From left, Barry Lynn and Ayesha Khan, then AU's executive director and legal director; plaintiffs Susan Galloway and Linda Stephens, and University of Virginia professor Doug Laycock, who argued AU's case.)

A federal appeals court had ruled in the women’s favor that Greece’s practice violated the First Amendment by having “the effect of affiliating the town with Christianity,” but the town board – represented by the Religious Right legal group Alliance Defending Freedom – appealed the decision to the U.S. Supreme Court.

The high court agreed to hear Greece v. Galloway – its first case involving governmental invocations in three decades. On May 5, 2014, in a 5-4 opinion written by now-retired Justice Anthony M. Kennedy, the court upheld Greece’s prayer practice. Kennedy said the Supreme Court’s 1983 Marsh v. Chambers decision – which referenced the historical origins of religious invocations in Con­gress to validate state legislatures that hire chaplains and open sessions with prayers – applied to municipalities like Greece, too.

“Legislative prayer, while religious in nature, has long been understood as compatible with the [First Amendment],” Kennedy wrote. “[Galloway and Stephens’] insistence on nonsectarian prayer is not consistent with this tradition.”

While a disappointing decision for church-state separation advocates seeking to make public meetings more welcoming and inclusive for people with diverse religious and nonreligious beliefs, the court’s opinion didn’t give municipal officials free rein to have evangelizing prayers at public meetings.

In fact, the Greece decision established quite the opposite – while sectarian prayers are permitted, invocations cannot proselytize, nor can they denigrate other beliefs. Government officials also can’t discriminate based on religion when selecting the people who give invocations, nor can they coerce audience members to participate in the prayers.

Shortly after the Greece ruling was handed down, Americans United launched a special project, Operation Inclusion, to inform Americans of their legal rights and encourage diversity among invocations. AU would rather that state and local governments not sponsor official prayers before meetings, but since the Supreme Court has allowed the practice, AU argued that the invocations should be broad and include a wide range of religious and non-religious speakers.

As a result, some communities began receiving requests to deliver invocations from non-theists, Wiccans, Pagans, Muslims, members of the Satanic Temple and representatives from other minority groups. While many of these invocations have been delivered without controversy, in other communities there has been pushback, often from fundamentalist Christians who don’t want to share the podium with groups they consider controversial.

Governmental bodies have struggled to comply with the nuances of the Supreme Court’s decision. Some have outright barred nontheists or people from faith traditions without an organized structure from offering invocations. Some have kept their prayers exclusively Christian. Some have derided nontheists and religious minorities seeking representation. And some have tried to make invocations more inclusive or forgo them altogether but have met with community backlash.

The Pennsylvania Capitol in late March happened to provide the stage for two very different prayers that exemplified the best and the worst of invocation policies in practice.

The best involved Americans Uni­ted client Deana Weaver, one of several nontheists who have been barred by the Pennsylvania House from offering invocations to open House sessions. In fact, less than a year after the Greece decision, House officials altered their invocation rules in an effort to support their exclusion of nontheists – a discriminatory practice that AU and American Atheists are challenging in federal court.

But the Pennsylvania Senate is more inclusive: On March 20, for the second time, the Senate allowed Weaver, a member of the Dillsburg Area Freethinkers, to offer a secular invocation. In her brief prayer, she invoked principles of equality, teamwork, wisdom and public service.

“We pray that the one principle that this great experiment of American democracy has taught us is that we are so much better when we work together in a spirit of inclusion,” Weaver said. “And so we pray. We pray for this democracy of the people, by the people and for the people. We pray for our government to serve all people equally.”

Weaver’s prayer that embraced Pennsylvanians’ common values stood in stark juxtaposition to a prayer offered in the state House less than a week later. In just under two minutes, freshman Rep. Stephanie Borowicz, a Republican from central Pennsylvania, invoked “Jesus” 13 times, “God” six times and “Lord” four times. Her prayer even contained proselytizing statements, such as “Jesus, you are our only hope” and “at the name of Jesus, every knee will bow and every tongue will confess Jesus, that you are Lord.” She also thanked President Donald Trump for supporting Israel.

Toward the end of the prayer, someone in the chamber shouted out an objection and House Speaker Mike Turzai touched Borowicz’s arm to signal to her to wrap it up.

Luchenitser noted to the Harrisburg Patriot-News that it was bad enough that Borowicz’s prayer crossed the line into proselytizing, but it also came on the same day that the state House’s first female Muslim member, Rep. Movita Johnson-Harrell (D-Philadelphia), was seated after winning a special election. Many observers questioned whether Boro­wicz’s explicitly Christian and proselytizing prayer was timed to coincide with Johnson-Harrell’s swearing-in ceremony and the presence of her large contingent of guests – many of them Muslim.

“It blatantly represented the Islamophobia that exists among some leaders – leaders that are supposed to represent the people,” Johnson-Harrell told the Pennsylvania Capital-Star, an online news site that covers state government. “I came to the Capitol to help build bipartisanship and collaborations regardless of race or religion to enhance the quality of life for everyone in the Commonwealth.”

“Opening prayers should be inclusive and respectful to the whole community,” Luchenitser said. “They should never be divisive. They should not proselytize. [Borowicz’s] prayer ran afoul of those guidelines. It was proselytizing, divisive and disrespectful to the first female Muslim member in what should have been a very special day for her.”

Luchenitser expects Americans United’s lawsuit challenging the Penn­sylvania House policy of excluding nontheists, Fields v. Speaker of the Pennsylvania House of Representatives, will be heard by the 3rd U.S. Circuit Court of Appeals later this year. A federal district court already has ruled in favor of Weaver and the other plaintiffs, agreeing with Americans United that the House policy is unconstitutionally discriminating against people along religious lines.

“The policy purposefully discriminates among invocation presenters on the basis of religion and thus exceeds the constitutional boundaries of legislative prayer,” wrote U.S. District Judge Christopher C. Conner in August 2018. “The House’s pre-2017 opening invocation practice, which coerces visitors to stand during the opening prayer and thereby participate in a religious exercise, likewise offends the Establishment Clause.”

The Pennsylvania House is not the only government body excluding nontheists from offering invocations: Brevard County Commissioners in Florida have a similar policy, and Americans United, joined by the Freedom From Religion Foundation (FFRF), American Civil Liberties Union and ACLU of Florida, is in court challenging it on behalf of several nontheists and nontheist organizations.

As in Pennsylvania, a federal court has ruled in AU’s favor in the William­son v. Brevard County case. In a 2017 ruling, the court, quoting another court’s opinion, noted, “‘The great promise of [the First Amendment] is that religion will not operate as an instrument of division in our nation.’ Regrettably, religion has become such an instrument in Brevard County.”

The Brevard County Commissioners have appealed that decision to the 11th U.S. Circuit Court of Appeals, where Luchenitser argued on behalf of AU’s plaintiffs on March 12. He told the court the commissioners enacted a “discriminatory policy that treats atheists and humanists as second-class citizens.” The court record also contains statements by commissioners that showed favoritism for Christianity and bias against other faiths, including Islam, Deism, polytheism and Wicca.

Several other federal appeals courts have heard invocation cases since the Supreme Court’s Greece decision, with mixed results. The 4th U.S. Circuit Court of Appeals in 2017 struck down the practice of Rowan County, N.C., Commissioners who offered overwhelmingly Christian prayers themselves and directed audience members to participate. The same year, the 6th U.S. Circuit Court of Appeals concluded the opposite when it upheld a similar prayer practice by Jackson County, Mich., Commissioners (Americans United submitted friend-of-the-court briefs in both cases, and AU Legal Director Richard B. Katskee argued in support of Peter Bormuth, a Druid who was disparaged by Jackson County officials when he challenged their policy).

First Liberty Institute, the Religious Right legal group representing both Rowan and Jackson counties, and Bormuth appealed to the U.S. Sup­reme Court, but the justices refused to hear the cases last year, despite the arguments of each side that the decisions had created a “circuit split” – the situation when two federal circuit courts of appeals have reached differing opinions.

In another invocation case, the U.S. Circuit Court of Appeals for the District of Columbia ruled April 19 in Barker v. Conroy that the U.S. House of Representatives may limit invocations to “religious prayers.”

The case was brought by Dan Barker, an atheist, one-time Christian minister and co-president of FFRF. Barker said he would like to offer a secular invocation to the House, but he was denied because, to offer an invocation, House policies provide that he must be a guest chaplain who is “ordained by a recognized body” and that ordination must be “in the faith in which he/she practices.” (AU also filed a friend-of-the-court brief in Barker’s case).

Fortunately, not all citizens have to take their government officials to court in order to gain equal representation and respect for their religious and nonreligious beliefs. Communities across the country are opening invocations to nonbelievers and religious minorities or doing away with invocations altogether.

“The great thing that’s come out of this is it sparked an interest in atheists and secular people to begin delivering invocations at government meetings." Many atheists “don’t want to come out of the closet. But now, when people see them giving these invocations and realize they’re their neighbors and people they know and not scary people, it’s been really good for the atheist community.”

~ Linda Stephens, AU plaintiff in Greece

Take El Paso, Texas, for example: Months after the Greece decision, Am­ericans United members petitioned the El Paso City Council to make its meeting invocations more inclusive. The council agreed, and AU member David Marcus offered what may have been the first secular invocation at a public meeting in all of Texas. Three years later, AU’s Join Us For Justice Chapter followed up that victory by convincing El Paso County Commissioners not to start having invocations at public meetings after a divisive invocation policy was proposed.

A year later and about 550 miles away, AU member Nick Lee offered the first secular invocation heard during a meeting of the San Antonio City Council: “As our elected representatives, we trust your decisions today will be based on the common good and with an eye to their impact on all citizens and future generations,” Lee said.

In March, prominent “Friendly Atheist” blogger Hemant Mehta similarly called on DuPage County, Ill., commissioners to reflect on the needs of their diverse community on the outskirts of Chicago when he offered the first secular invocation at a commissioners’ meeting. He called on the commissioners to celebrate “our shared humanity and our basic decency and do what’s best for the wonderfully diverse community and county that we are so fortunate to call our home.”

Following his invocation, DuPage Commissioners considered ending the more than 40-year practice of having invocations at meetings, with some officials noting the predominantly Christian prayers offered and concerns for church-state separation. But in an 11-6 vote, commissioners decided to keep the invocations.

Commissioner Sadia Covert, the only Democrat who voted in favor of invocations, said she thought they offered a platform for citizens to express diverse beliefs and “to share about where they come from,” according to the Chicago Daily Herald. Covert said the debate had prompted people to express interest in offering invocations: “I’m compiling a list, and I welcome everybody to be included.”

Better awareness of religious diversity is one of the silver linings of the disappointing Greece decision, according to Linda Stephens, one of the two plaintiffs in the case.

“The great thing that’s come out of this is it sparked an interest in atheists and secular people to begin delivering invocations at government meetings,” Stephens told Church & State. She said many atheists “don’t want to come out of the closet. But now, when people see them giving these invocations and realize they’re their neighbors and people they know and not scary people, it’s been really good for the atheist community.”