Though the founders of our country sought to evade religious persecution, and explicitly sought to separate church and state, more than 200 years later we are still talking about the intersection of religion and public life. (Sidebar: Someone please give Congress a refresher on our country's history. Today.)
And, we're not talking about a case coming out of the Bible Belt, the latest religion case comes out of the
usually hip older sister circuit, the Second.
Town of Greece v. Galloway -- Background
The Town of Greece, located outside of Rochester New York has a population of about 94,000 and has monthly town meetings that are open to the public. From 1999 to 2007, all meetings began with a prayer -- and in every instance the prayer was given by someone of the Christian faith. In roughly two-thirds of the prayers, Jesus, or some other concept associated strictly with Christianity was referenced.
In 2008, two residents complained arguing that the town was aligning itself with the Christian faith and that the prayers were not secular, but sectarian. After the initial complaints, of the twelve meetings that followed (before the commencement of litigation) four of the prayers were given by non-Christians: one Wiccan priestess, one Baha'i person and one Jewish lay-person (who gave 2 prayers).
Town of Greece v. Galloway -- Legal Analysis
Litigation ensued with the district court finding for the Town of Greece. The Second Circuit reversed the decision of the district court and stated:
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.
The Second Circuit went out of its way to state that it is not unconstitutional to start town meetings with prayers. It did hold, however, that: "a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause."
Town of Greece v. Galloway -- Unlikely Allies
Congress and our President can't seem to agree on anything -- except that towns should have the right to start meetings with prayers. We know, we were shocked too. But, in August, both the President's administration and members of Congress (mostly Republicans), maintained in separate briefs, that prayer should be allowed at town meetings.
This is the Court's first legislative invocation case since Marsh v. Chambers, which in 1983, it held that government funding of chaplains to give an opening prayer is constitutional. Last year, the Court passed up an opportunity to review Joyner v. Forsyth, a Fourth Circuit decision that held that non-sectarian prayers were permissible to open county board meetings. This case will allow the Court to revisit the issue of legislative invocation, and clarify the circumstances and factors that will make opening public meetings with prayer permissible.
- Greece Needs a New Prayer Policy (FindLaw's U.S. Second Circuit Blog)
- Certs Granted: Greece, NY Prayer Case, Four Others (FindLaw's U.S. Supreme Court Blog)
- 2 More Important Cases: Legislative Prayer, Abortion Protests (FindLaw's U.S. Supreme Court Blog)