Greece Needs a New Prayer Policy

We’re used to reading public prayer cases from the Fourth Circuit Court of Appeals. This week, the Second Circuit took a stab at the Establishment Clause, finding that a New York town’s invocation policy was unconstitutional.

Greece, N.Y. has started its Town Board meetings with a short prayer since 1999. In 2008, residents Susan Galloway and Linda Stephens sued the town and Town Supervisor John Auberger in federal court, asserting that aspects of this prayer practice violated the Establishment Clause. The district court granted the defendants’ motion for summary judgment.

Thursday, the Second Circuit Court of Appeals reversed the lower court, holding that the district court erred in rejecting the plaintiffs' argument that the prayer policy impermissibly affiliated the town with Christianity.

"The town's desire to mark the solemnity of its proceedings with a prayer is understandable; Americans have done just that for more than two hundred years. But when one creed dominates others -- regardless of a town's intentions -- constitutional concerns come to the fore," Judge Calabresi wrote in the opinion.

Greece never adopted a formal prayer policy regarding the process for inviting prayer-givers, the permissible content of prayers, or any other aspect of its prayer practice. The town claimed that anyone could ask to give an invocation, (including adherents of any religion, atheists, and the nonreligious), and that it never rejected such a request. The town also claimed that it does not review the language of prayers before they are delivered, and that it would not censor an invocation, no matter how unusual or offensive its content.

Greece acknowledged, however, that it never publicized to town residents that anyone may volunteer to deliver prayers or that any type of invocation would be permissible.

Christian clergy members delivered nearly all of the prayers relevant the lawsuit; from 1999 through 2007, every prayer-giver who gave the invocation was Christian. In 2008, after Galloway and Stephens complained about the prayer practice, non-Christians delivered the prayer at 4 of the 12 Town Board meetings. (The four prayers came from a Wiccan priestess, the chairman of the local Baha'i congregation, and a lay Jewish man.)

According to the Second Circuit Court of Appeals, Greece can continue its legislative prayer policy as long as the prayers do not convey an official affiliation with a particular religion. The defendants, however, suggest that the court's ruling could lead to greater entanglement.

"The court wants the town to be prayer monitors, to determine how many prayers in Jesus' name are too many," which would violate the Establishment Clause, the Alliance Defense Fund's Joel Oster told Thomson Reuters News & Insight.

Related Resources:

• Galloway v. Town of Greece (Second Circuit Court of Appeals)
• Is Justice Clarence Thomas Right About the Establishment Clause? (FindLaw's Supreme Court Blog)
• Dixie County Appeals 10 Commandments Case (FindLaw's Eleventh Circuit Blog)