Published by MARE, August 2014

As the summer comes to a close, so does one of the most controversial Supreme Court terms in recent history. It is well-known in the legal world that the Justices hear their most controversial cases soon after they open session on the first Monday in October, but hold on to their opinions in those cases until they are ready to go on hiatus at the end of the summer, leaving lawyers on the edge of their seats for those newsworthy opinions that are handed down in June and July. This summer has been no exception, with the most recent notable decision being their June 30, 2014, decision in Burwell v. Hobby Lobby Stores, Inc., in which SCOTUS dealt a blow to “Obamacare.” While that decision is unlikely to have impact on Missouri school districts, a lesser-heralded decision issued on May 5, 2014, resonates with many Missouri school boards.

The Supreme Court heard arguments in Town of Greece v. Galloway, a case arising out of the Second Circuit, in November, after receiving nearly fifty (50) “friend of the Court” briefs from organizations such as the American Civil Liberties Union and the Southern Baptist Convention.

Greece, a small town in New York, opened its monthly town board meetings with a roll call vote, the Pledge of Allegiance….and a prayer. The prayer was led by a member of the community’s clergy, and while the prayer time was open to all creeds, nearly every prayer offered at the monthly meetings was based in the Christian faith. This has been their practice since 1999. Several residents of the town sued the town, claiming that the prayer time violated the Establishment Clause of the First Amendment of the Constitution of the United States because it preferred Christianity to other organizations. They wanted to limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God.”

The trial court upheld the town’s prayer practice, finding that the town did not “prefer” the Christian faith – it opened the time up to any community clergy, and the fact that the participants were all Christian was not a reflection of the board’s preference for Christians, but rather was a reflection on the community’s clergy roster. The trial court found that the First Amendment did not require the town to invite clergy from other congregations beyond the town’s boarders in order to promote diversity, and it rejected the suggestion that the prayers must be nonsectarian. However, the Court of Appeals reversed the decision of the trial court, holding that when viewed in their totality by an objective outsider, conveyed a message that the town was “endorsing” Christianity over other faiths – the litmus test historically employed by courts in determining whether the Establishment Clause of the First Amendment has been violated.

In a 5-4 decision, the Supreme Court reversed the decision of the Appellate Court, upholding the town’s prayer practice.   The Court looked to the nation’s history of “legislative prayer,” pointing out that many state legislatures and the United States Congress have a legislative chaplain, and that there was also historical precedence for opening local legislative meetings with prayer. These positions and practices have already been found by the Supreme Court to be acceptable under the Establishment Clause of the First Amendment. Thus, the Court stated that in reviewing a challenge to a “religious” practice, one had to first acknowledge the significance that similar practices were accepted by the very Framers who drafted the First Amendment, and those practices have “withstood the critical scrutiny of time and political change.”

The Court then moved from analyzing the general practice of legislative prayer to Greece’s particular practice and history. The Court noted that “nonsectarian prayer” was inconsistent with the traditions which were upheld by the Court in previous cases, reminding the parties of the Court’s previous ruling that the “content of the prayer is not of concern to judges,” provided “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” In fact, if governing bodies, such as town boards, school boards, or legislatures, were to require that prayers be nonsectarian, it would put those governing bodies in a position to act as censors, weeding-through the content of a prayer in order to redline overtly Christian references – a practice which would likely violate the prayer-giver’s First Amendment right to the Free Exercise of his or her religion. The Court held that this would be far more problematic, “for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech.” The Court clarified that there should be some constraints on the content of the prayer, but the relevant restraint derived from the timing of the prayer itself – at the opening of the meeting. Opening a meeting with prayer, held the Court, lends “gravity to the occasion and reflect values long part of the Nation’s heritage. From the Nation’s earliest days, invocations have been addressed to assemblies comprising many different creeds, striving for the idea that people of many faiths may be united in a community of tolerance and devotion, even if they disagree as to religious doctrine.” The clergy in Greece did reference the name of Jesus, but they also invoked other themes of general cooperation and goodwill, calling at times for a “spirit of cooperation,” among the board members. Thus, the Court held that, “absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation.”

This decision is applicable to Missouri school boards, many of which historically opened in prayer, but set aside the practice in the 1990’s in the wake of legislation and cases which were critical of the practice. The Town of Greece v. Galloway decision clarifies the role of prayer in public meetings, approving clergy-led prayer at the opening of the meeting.