Hello, readers! We have ahead of ourselves yet another week that’s devoid of Supreme Court oral arguments, so I figured now would be a good time to preview a case that’s going to be argued on November 6: Town of Greece v. Galloway. This case addresses the issue of religion as it intersects with governance, one of the thornier legal questions to emerge from the application of the Bill of Rights; SCOTUSblog currently considers Town of Greece v. Galloway to be one of the five “Major Cases” of the 2013-2014 term because of the “separation of Church and State” question at hand (see the “Major Cases” link on SCOTUSblog’s “Term Snapshot” sidebar).
The situation at hand in Town of Greece v. Galloway is as follows: Greece, a town in New York, is run by a five-member town board that holds monthly, public “town meetings.” According to Oyez, these town meetings have begun with “a prayer given by an invited member of the local clergy” since 1999. Greece “did not adopt any policy regarding who may lead the prayer or its content,” but more often than not, the prayer was delivered by “Christian clergy members.”
Eight years later, in 2007, town residents Susan Galloway and Linda Stephens “complained about the town’s prayer practices,” and after their complaint, “there was some increase in the denominations represented” (from Oyez). Despite this change, Galloway and Stephens sued their town in February 2008 with the claim that “the town’s practices violated the Establishment Clause of the First Amendment by preferring Christianity over other faiths.” The district court ruled in favor of the Town of Greece, but then the U.S. Court of Appeals for the Second Circuit reversed this decision, affirming Galloway and Stephens’ claim that the Establishment Clause had been violated. The Town of Greece appealed to the Supreme Court, and the petition was granted in May 2013. The question before the Court is, as Oyez explains, whether “the invocation of prayer at a legislative session violate[s] the Establishment Clause of the First Amendment even in the absence of discrimination in the selection of prayer-givers and content.”
I can’t tell you how the Court might rule in Town of Greece v. Galloway because the oral argument has not yet taken place, but I can try to explain what is at stake in this case. To reiterate, the issue at hand is whether the Town of Greece has been violating the First Amendment’s Establishment Clause by opening each town meeting with a prayer. The Establishment Clause of the First Amendment is the first clause in the amendment, and reads, “Congress shall make no law respecting an establishment of religion.” The Establishment Clause “forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another… [or] from undulling[?] religion over non-religion, or non-religion over religion” (from the Legal Information Institute).
The Supreme Court did not apply the Establishment Clause to the states until its 1947 case Everson v. Board of Education, in which New Jersey allowed reimbursement to parents for the cost of sending their children to parochial schools using public buses. In a 5-4 decision written by Justice Hugo Black, the Court held that the Establishment Clause (as applied to the states through the Fourteenth Amendment) was not violated by New Jersey because “services like busing and police and fire protection for parochial schools [were] ‘separate and so indisputably marked off from the religious function’ that for the state to provide them would not violate the First Amendment” (from Oyez). Black’s decision cited Thomas Jefferson, saying, “the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State,’” and since then the Court has tried to apply this philosophy to questions of religion and government.
Perhaps the most famous Establishment Clause case is Lemon v. Kurtzman (1971), which established the “Lemon Test” (not to be confused with “lemon laws,” which apply to defective automobiles) that is still used to decide Establishment Clause questions today. In Lemon, the Court examined whether Rhode Island and Pennsylvania violated the Establishment Clause by making financial aid available to “church-related educational institutions”—Chief Justice Warren Burger wrote for the eight-justice majority (Justice Thurgood Marshall recused himself) and articulated the three parts of the Lemon Test. In order for a statute “dealing with religious establishment” to be constitutional, the statute must have “a secular legislative purpose,” it must have “principal effects which neither advance nor inhibit religion,” and it must not “foster an excessive government entanglement with religion” (from Oyez). Also, for a statute to be considered not to be in violation of the Establishment Clause, it must fulfill all three of the prongs of the Lemon Test.
If I were a Supreme Court Justice and had to apply the Lemon Test to the situation in Town of Greece v. Galloway, the results would fall out something like this:, Greece’s practice of prayer before town meetings has no legislative purpose; it also seems to foster an excessive entanglement between the Town Board of Greece and “religion” generally. It could be argued that the principal effects of the town prayer neither advance nor inhibit religion, but, in my Lemon Test analysis, Greece’s practice of saying a prayer before each town meeting fails two out of three prongs of the Lemon Test and thus is in violation of the Establishment Clause of the First Amendment. However, the issue at hand in Town of Greece v. Galloway is tricky because the issue of religious establishment in question is a practice—starting each town meeting with a prayer—and not an actual statute. Therefore, the Lemon Test cannot necessarily be applied in these circumstances. The Nine might decide to do so, but they are more likely to rely on precedent that speaks to public prayer instead of Lemon or Everson-style scenarios.
The most monumental case about public prayer is Engle v. Vitale, a landmark 1962 decision in which the New York State Board of Regents mandated that every school day start with the recitation of a “short, voluntary prayer.” The prayer in question was considered “nondenominational,” but, in a 6-1 vote (Justices Byron White and Felix Frankfurter recused themselves), the Court found this mandated prayer to be unconstitutional. As Oyez explains, “By providing the prayer, New York officially approved religion,” and as such the Establishment Clause was violated.
A year after Engle came Abington School District v. Schempp, where Pennsylvania public school students were required to read “at least ten verses from the Bible” at the start of every school day. The Court found this practice unconstitutional because “the required activities encroached on both the Free Exercise Clause and the Establishment Clause… since the readings and recitations were essentially religious ceremonies and were ‘intended by the State to be so’” (from Oyez). Wallace v. Jaffree (1985) addressed a law which mandated teacher-led prayer in Alabama public schools, and the Court held this statute unconstitutional. The Court “appl[ied] the secular purpose test, which asked if the state’s actual purpose was to endorse or disapprove of religion,” and the six-justice majority held that Alabama’s law “was an affirmative endorsement of religion” (from Oyez).
Next came Lee v. Weisman, a 1992 case in which a middle school in Providence, Rhode Island (!!!) invited a rabbi to speak at its graduation. An angry parent brought suit against the middle school principal (named Robert E. Lee, oddly enough…) and the Supreme Court, in a 5-4 divide, found the practice in violation of the Establishment Clause. Finally, in the 2003 case Santa Fe Independent School District v. Doe, Santa Fe’s policy to allow “student-led, student-initiated” prayer before football games was held in violation of the Establishment Clause. Justice Stevens explained in his 6-3 majority opinion that “the football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events,” and also that Santa Fe’s “policy involved both perceived and actual government endorsement of the delivery of prayer at important school events” (from Oyez). Clearly, in Stevens’ eyes, there was too great of a connection between the government of Santa Fe and its public schools to allow any sort of endorsement of religion to take place on public school grounds.
With all of these cases under our belts, let’s take a renewed look at Town of Greece v. Galloway. If the Court rules in Town of Greece v. Galloway according to the “no prayer at public school” precedents that have been set by Engel and its progeny, the practice of beginning each town meeting with a prayer will be struck down. The situations in both Lee and Santa Fe address practices and not statutes, providing a precedent for Greece’s practice of prayer before the meetings, and both practices in Lee and Santa Fe were held unconstitutional. It follows, then, that the practice in Town of Greece v. Galloway would also be seen as a violation of the Establishment Clause. However, as I said last week, the current Roberts Court does not always place stock in precedent, and thus this case might fall the other way. We’ll have more insight into this situation when Town of Greece v. Galloway is argued on November 6—check back here soon thereafter for more discussion of this case!