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n May 5, 2014, the U.S. Supreme Court held in Town of Greece v. Galloway that the town’s practice of opening its town board meetings with a prayer of- fered by members of the local clergy does not violate the Establishment Clause when the practice is consistent with the tradition long followed by Congress and state legislatures, the town does not discriminate against minority faiths in determining who may offer a prayer, and the prayer does not coerce participation with non-adherents. In a 5-4 decision, the Court cited Marsh v. Cham- bers, 463 U.S. 783 (1983), to conclude that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. Te question before the Court was, “Does the invocation of


prayer at a legislative session violate the Establishment Clause of the First Amendment even in the absence of discrimination in the selection of prayer-givers and content?” Since 1999, the town of Greece, N.Y., has opened its monthly town board meetings with a roll call, a recitation of the Pledge of Allegiance, and a prayer given by clergy selected from the churches listed in a local directory. Te practice was introduced when a newly elected town supervisor, John Auberger, decided to replicate the prayer practice he had found meaningful while serving in the county legislature. Nearly all the local churches in the town are Christian, so all the people leading the prayers are Christian as well, even though the prayer program is open to any creed. Residents who attended the meetings filed the lawsuit. Tey al- leged that the town violated the Establishment Clause of the First Amendment to the U.S. Constitution by preferring Christian prayer. Te U.S. District Court for the Western District of New York upheld the prayer practice on summary judgment. Te U.S. Court of Appeals for the Second Circuit struck down the practice, holding that parts of the prayer program could lead one to conclude that the town of Greece was endorsing Christianity. Te Supreme Court reversed the judgment of the appeals court. Justice Anthony Kennedy wrote the lead opinion that sets out the constitutional prescription provided for legislative prayers. Accord- ing to Lyle Denniston of SCOTUSBlog, that prescription is based on eight factors (Lyle Denniston, Opinion analysis: Prayers get a new blessing, SCOTUSBlog, opinion-analysis-prayers-get-a-new-blessing/):

• Such prayers are not confined to meetings of Congress or state legislatures, but may also be recited in the more intimate and familiar setting of local government meetings (such as a quo- rum court meeting).

U.S. Supreme Court upholds prayer for local legislatures

• The prayer portion of the meet- ing must be conducted only during a ceremonial part of the government body’s session, not mixed in with ac- tion on official policy.

• The body may invite anyone in the community to give a prayer and (if it has the money) could have a paid chaplain.

JONATHAN GREER General Counsel

• The body may not dictate what is in the prayers and what may not be in the prayers. A prayer may invoke the deity or deities of a given faith, and need not embrace the beliefs of multiple or all faiths.

• In allowing “sectarian” prayers, the body’s members may not

“proselytize” — that is, promote one faith as the true faith — and may not require persons of different faith preferences, or of no faith, to take part, and may not criticize them if they do not take part.

• The “sectarian” prayers may not disparage or discriminate against a specific faith, but officials need not go to extra lengths to make sure that all faiths do get represented in the prayer sessions — even if that means one faith winds up as the dominant message.

• Such prayers are permissible when most, if not all, of the audi- ence is made up of adults — thus raising the question whether the same outcome would apply if the audience were a group of children or youths, such as the Boy or Girl Scouts, appearing before a gov- ernment agency or a government-sponsored group.

• A court, in hearing a challenge to a prayer practice, is confined to examining “a pattern of prayers,” and does not have the author- ity to second-guess the content of individual prayer utterances. In judging such a pattern, the proper test is not whether it tends to put forth predominantly the beliefs of one faith, but whether it has the effect of coercing individuals who do not share that faith.

You are encouraged to keep these factors in mind if your county is considering or already opens its quorum court meetings with prayer. Te case is Town of Greece v. Galloway, 572 U.S. ___ (2014). Te full opinion is viewable online at opinions/13pdf/12-696_bpm1.pdf. 12 COUNTY LINES, SUMMER 2014

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