Supreme Court Update: Town of Greece v. Galloway (12-696), Robers v. United States (12-9012) and Tolan v. Cottan (13-551)

May 12, 2014 Supreme Court Update

Greetings, Court fans!

It's catch-up week for the Updaters, as we prepare for the home stretch. Today, we bring you the Court's decision in Town of Greece v. Galloway (12-696), its first entrée into pure Establishment Clause litigation since the Ten Commandments cases, Van Orden v. Perry and McCreary County v. ALCU, back in 2005. That's a pretty meaty entrée, so we'll follow up with two lighter courses – a quick and easy decision on restitution in Robers v. United States (12-9012), and a summary opinion in Tolan v. Cottan (13-551) reiterating the summary-judgment standard – as well as the rest of the Court's orders in a separate Update.

We begin with prayer, which (not coincidentally) is also how the Town of Greece, NY, began its monthly Town Board meetings starting in 1999. The Town's practice was to contact representatives of local congregations and ask them to deliver an opening invocation. Though the Town never excluded a would-be chaplain from participating, virtually every congregation in town was a Christian one, and therefore from 1999–2007, nearly every participating "board chaplain" was Christian, as well. Often, these chaplains delivered relatively ecumenical invocations, seeking divine guidance for Town leaders and blessings on the community. But some chaplains delivered distinctly Christian prayers, referring to "our Christian faith," and acknowledging "the saving sacrifice of Jesus Christ on the cross." After one regular attendee of Town Board meetings, Susan Galloway, objected to the overtly Christian prayers, the Town invited a Jewish layman to deliver prayers and accepted the request of a Wiccan priestess to deliver an invocation. Nevertheless, the prayers remained predominantly Christian in tone and content.

Galloway brought suit in the Western District of New York, alleging that the Town violated the Establishment Clause by preferring Christians over other prayer givers. She did not seek to end the prayer practice entirely, but requested an injunction limiting the Town to "inclusive and ecumenical" prayers that referred only to a "generic God" and would not associate the Town with any one faith or belief. The District Court denied the injunction and granted summary judgment to the Town, finding that the Town had not displayed an impermissible preference for Christianity; rather, the predominantly Christian identity of the prayer-givers simply reflected the predominantly Christian identity of the Town's congregations, from which prayer-givers were drawn. The Second Circuit reversed, finding that the Town's failure to promote the prayer opportunity to the general public, or to invite ministers from congregations outside the Town's boundaries, all but "ensured a Christian viewpoint." The Second Circuit did not believe the practice of opening board meetings with a prayer violated the Establishment Clause, per se, but held that the "interaction of the facts present in this case" rendered the Town's prayer practice unconstitutional.

The Supreme Court reversed again, in a decidedly fractured decision. Justice Kennedy announced the judgment of the Court and delivered an opinion joined in full by the Chief and Justice Alito and in part by Justices Scalia and Thomas, who concurred separately to urge a more bright-line test. Justice Kagan drafted an opinion for the four dissenters, and Justice Breyer added a separate dissent of his own. Alito (joined by Scalia) filed a concurrence taking on Kagan's dissent. All told, a bare majority believed that the Town's prayer practice did not violate the Establishment Clause.

The fractured decision is a product of the almost sui generis nature of legislative prayer in Establishment Clause jurisprudence. In other Establishment Clause contexts, the Court has applied (or attempted to apply) various tests—the much-maligned Lemon test, the somewhat-less-maligned endorsement test—to determine whether particular government action violates the First Amendment. But legislative prayer has been treated differently, for the simple reason that the first Congress, which ratified the Bill of Rights, also appointed and paid official chaplains to open its legislative sessions with prayer, and it is generally presumed (perhaps questionably) that actions taken by the First Congress are consistent with the First Amendment. Thus, in Marsh v. Chambers (1983), the Court blessed the Nebraska Legislature's longstanding practice of opening its sessions with a prayer delivered by a chaplain paid by the state, holding that "[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society." To the majority, the issue in this case was whether the prayers offered at Greece's Town Board meetings "fit[] within the tradition long followed in Congress and the state legislatures," insisting that "[a]ny test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change." Galloway argued that the Grecian prayers fell outside that tradition because they contained sectarian language and themes and because the setting of a town board meeting creates social pressures not present in Congress or state legislatures.

The majority expressly rejected the notion that legislative prayer must be generic or nonsectarian to pass Constitutional muster. On the contrary, the longstanding tradition of legislative prayer has often included expressly sectarian prayers, both Christian and non-Christian. Indeed, the Court stressed, a requirement that invocations be nonsectarian would itself pose grave First Amendment concerns, as it would "force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech." Instead, the only constraint is that the prayer must occur in a context "where it is meant to lend gravity to the occasion and reflect values long part of the Nation's heritage." If instead prayer is used to denigrate nonadherents or nonbelievers or preach conversion, that would run afoul of the Establishment Clause. But, the majority insisted, that was not the case here. Though Galloway had identified two occasions on which prayer-givers appeared to denigrate others, the majority held that "[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation." The majority similarly rejected the reasoning of the Second Circuit, holding that "[s]o long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing."

Turning to Galloway's second argument, the plurality (now without Thomas and Scalia) rejected the notion that the "intimate setting" of a town meeting rendered prayers at such meetings more coercive than the type of legislative prayer approved in Marsh. Justice Kennedy again turned to the long tradition of legislative prayer in this country, concluding that because of this long tradition, most people understand that these prayers are intended not for the public, but for the "lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing." Kennedy stressed that the analysis would be different if "town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person's acquiescence in the prayer opportunity," but again stated that Greece was guilty of no such thing (notwithstanding that ministers often requested that those assembled to rise or bow their heads or to "join our hearts and minds together in prayer"). Although Kennedy acknowledged that Galloway and others may have felt "excluded and disrespected" he stated that such offense "does not equate to coercion."

Justices Thomas and Scalia rejected this portion of Kennedy's opinion. In their view, there was no need to conduct a detailed analysis of the context of the prayers at issue in this case, for the Establishment Clause only prohibits the type of express coercion that the Founders rejected—namely, "coercion of religious orthodoxy [with] financial support by force of law and threat of penalty." The Establishment Clause prohibits a state from levying taxes to support an official church, or requiring citizens to attend an established church, or conditioning political participation on membership in an official church. It is not violated "whenever the ‘reasonable observer' feels ‘subtle pressure' or perceives a governmental ‘endorsement.'" Justice Thomas also made a pitch for his view that none of this matters as the Establishment Clause is really just a "federalism provision" and does not apply to states or localities in the first place, but he appears to be alone in that view, as even Justice Scalia abstained from that portion of his concurrence.

Justice Kagan penned the principal dissent, which was at least as long on history and tradition as Justice Kennedy's opinion, though with a different take-away. Kagan identified three crucial differences between the Town's practice and that approved in Marsh: First, the prayers in Marsh were directed at the legislators, whereas the prayers in Greece were addressed to the public; Second, the members of the public at Greece's Town Board meetings were there not merely to observe local government but to actively participate in it; And third, the prayers at issue in Marsh were generally ecumenical, whereas almost all of the prayers offered in Greece were sectarian. In Justice Kagan's view, the majority had ignored the unique factual setting in this case—an intimate Town Board meeting with active citizen participation in the face of overtly sectarian prayers. In that setting, the public is confronted "with government-sponsored worship that divides them along religious lines." This falls outside the tradition of prayer approved in Marsh.

Justice Breyer also focused on the particular facts of the case, emphasizing in a separate solo dissent several specific factors that led him to conclude that Greece's prayer practice was unconstitutional. Echoing his concurring opinion in Van Orden v. Perry (2005), Justice Breyer stated that there is "no test-related substitute for the exercise of legal judgment" and "[h]aving applied my legal judgment to the relevant facts, I conclude . . . that the town of Greece failed to make reasonable efforts to include prayer givers of minority faiths, with the result that, although a community of several faiths, its prayer givers were almost exclusively persons of a single faith." Justice Alito (joined by Scalia), responded in kind, turning to the record to defend the Town's approach to selecting prayer givers.

All in all, the Court's decision is probably most notable for what it didn't say. There was precious little attention to (let alone application of) the Lemon test or the endorsement test, that are associated with the Court's previous Establishment Clause jurisprudence. Instead, both sides focused on history and tradition, but drew starkly different conclusions when applying that tradition to contemporary facts.

Stay tuned for the two other decisions and orders!

Kim, Jenny & Tadhg