In what is arguably the the biggest legal victory for religious liberty in 31 years, the Supreme Court Monday ruled 5-4 that a town’s practice of starting legislative sessions with a brief prayer does not violate the First Amendment.
The decision in Town of Greece v. Galloway, authored by Justice Anthony Kennedy, is likely to have wide-reaching implications for religious freedom in American life.
“We are gratified that the Supreme Court has reaffirmed the constitutional right of Americans to solemnize legislative meetings by offering public prayer, without censorship and according to the dictates of their conscience,” Thomas Hungar, the Gibson Dunn & Crutcher lawyer who argued the case before the court, told Breitbart News.
David Cortman of Alliance Defending Freedom, which had litigated the case for years, said “in America, we tolerate a diversity of opinions and beliefs; we don’t silence people or try to separate what they say from what they believe.”
The high court had previously upheld “legislative prayer,” religious invocations at public assemblies, in a 1983 case, Marsh v. Chambers. But after decades of the judiciary and society trending more secular, atheist activists sought to require prayers that had no faith-specific content, for example forbidding the mention of Jesus Christ.
The Establishment Clause of the First Amendment does not permit Congress to establish a national religion. In 1947 the Supreme Court held that this prohibition also applies to state and local governments, and that government must remain neutral on matters of religion. In Galloway, the Supreme Court reaffirmed Marsh, rejecting attempts at censoring religious speech and holding that faith-specific prayers do not violate the Establishment Clause.
However, the decision carries broad implications beyond legislative prayer and will influence future decisions on faith-based speech or displays.
Kennedy, writing for the majority, said the Establishment Clause “must be interpreted by reference to historical practices and understanding,” and noted that Congress appointed chaplains days after approving the First Amendment.
The majority noted that various tests the Court has applied since 1971 have cast doubt on many longstanding faith-based practices and displays. “Any 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,” Kennedy wrote.
Regarding legislative prayer specifically, the decision added:
An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases… The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes … The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.
Rejecting the plaintiffs’ argument that courts should forbid “sectarian” references such as mentioning Jesus Christ or distinctly Christian beliefs, Kennedy responded:
To hold that invocations must be nonsectarian 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, a rule that would involve government in religious matters to a far greater degree ….
Kennedy also wrote broadly that “government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.”
If the government “invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian,” the decision said.
Kennedy wrote that there are limits of what can be said in prayer. For example, “If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion,” then such prayers would cross the constitutional line. Nonetheless, “prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion,” and therefore are still consistent with the Establishment Clause.
The opinion brushed aside the idea that the Constitution empowers dissenters to be free from hearing religious speech. “Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith,” the majority continued.
Kennedy added that occasional remarks that “stray” from these ideals do not “despoil a practice… Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose,” prayers cannot be challenged because of their content.
Later in the opinion, Justices Antonin Scalia and Clarence Thomas dropped off because they thought Kennedy did not go broadly enough. Writing for himself, Chief Justice John Roberts, and Justice Samuel Alito, Kennedy declared, “It is an elemental First Amendment principle that government may not coerce its citizens to support or participate in any religion or its exercise.”
Applying that specifically to legislative prayer, Kennedy added, “That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve its content.”
Citing examples of different facts where the Court’s conclusion might be different, Kennedy explained, “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.”
The atheists here claimed “the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion,” Kennedy responded. “Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views ….”
Kennedy concluded for himself, Roberts, and Alito:
Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.
Four justices dissented, and would have forbidden explicitly Christian prayers. Justice Elena Kagan wrote the main dissent, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Breyer also wrote his own separate dissent.
Justice Alito wrote a concurring opinion, joined by Scalia, to rebut the claims of the four dissenting justices, saying that arguments were “really quite niggling.”
Alito’s primary point was, “It was one thing to compose a prayer that is acceptable to both Christians and Jews; it is much harder to compose a prayer that is also acceptable to followers of Eastern religions that are now well represented in this country.” Many clergymen find it impossible, and “cannot in good faith deliver such a vague prayer.”
Justice Thomas wanted parts of the Court’s opinion to declare broader protections for religious liberty, joined by Scalia. Thomas, regarding the level of coercion that violates the Establishment Clause, wrote, “In a typical case, attendance at the established church was mandatory, and taxes were levied to generate church revenue. Dissenting ministers were barred from preaching, and political participation was limited to members of the established church.”
In the context of legislative prayer, Thomas concluded, “Thus, to the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts–not the ‘subtle coercive pressures’ allegedly felt by the [plaintiffs] in this case.”
Ken Klukowski is senior legal analyst for Breitbart News and filed briefs for Members of Congress in Town of Greece v. Galloway. Follow him on Twitter @kenklukowski.