New York Times

Town Meetings Can Have Prayer, Justices Decide

By ADAM LIPTAK MAY 5, 2014

WASHINGTON — In a major decision on the role of religion in government, the
Supreme Court on Monday ruled that the Constitution allows town boards to
start their sessions with sectarian prayers. The ruling, by a 5-to-4 vote, divided the
court’s more conservative members from its liberal ones, and their combative
opinions reflected very different views of the role of faith in public life, in
contemporary society and in the founding of the Republic.

Justice Anthony M. Kennedy, writing for the majority, said that a town in
upstate New York had not violated the Constitution by starting its public meetings
with a prayer from a “chaplain of the month” who was almost always Christian
and who sometimes used distinctly sectarian language. The prayers were
ceremonial, Justice Kennedy wrote, and served to signal the solemnity of the
occasion.

The ruling cleared the way for sectarian prayers before meetings of local
governments around the nation with only the lightest judicial supervision.
The decision built on one from 1983 that allowed prayers at the start of
legislative sessions. The two sides on Monday disagreed about whether town
board meetings, which include not only lawmakers and spectators but also
citizens seeking to do business with the government, are meaningfully different
from legislative sessions.

Justice Kennedy said the prayers in both settings were “meant to lend gravity
to the occasion and reflect values long part of the nation’s heritage.”
Justice Elena Kagan said in dissent that the town’s practices could not be
reconciled “with the First Amendment’s promise that every citizen, irrespective of
her religion, owns an equal share in her government.”

She said the important difference between the 1983 case and the new one
was that “town meetings involve participation by ordinary citizens.”
She did not propose banning prayer, Justice Kagan said, but only requiring
officials to take steps to ensure “that opening prayers are inclusive of different
faiths, rather than always identified with a single religion.”

Town officials in Greece, N.Y., near Rochester, said members of all faiths,
and atheists, were welcome to give the opening prayer. In practice, however,
almost all of the chaplains were Christian. Some prayers were explicitly sectarian,
with references, for instance, to “the saving sacrifice of Jesus Christ on the cross.”
Two town residents sued, saying the prayers ran afoul of the First
Amendment’s prohibition of government establishment of religion. They said the
prayers offended them and, in Justice Kennedy’s words, “made them feel
excluded and disrespected.”

But Justice Kennedy said the relevant constitutional question was not
whether they were offended. “Adults often encounter speech they find
disagreeable,” he wrote. “Legislative bodies do not engage in impermissible
coercion merely by exposing constituents to prayer they would rather not hear
and in which they need not participate.”

Justice Kennedy said traditions starting with the first Congress supported the
constitutionality of ceremonial prayers at the start of legislative sessions. Both
Houses of Congress, he said, have appointed and paid for official chaplains
almost without interruption ever since. Legislative prayer, he said, is “a practice
that was accepted by the framers and has withstood the critical scrutiny of time
and political change.”

In a long footnote, Justice Kagan disputed that assertion, saying some of the
most prominent members of the founding generation — George Washington,
Thomas Jefferson and James Madison — took pains to keep sectarian language
away from public life. “The demand for neutrality among religions is not a
product of 21st century ‘political correctness,’ ” she wrote, “but of the 18th century view.”

But Justice Kennedy said legislative prayers may have sectarian content and
need not “be addressed only to a generic God.” He added that it would be perilous
for courts to decide when prayers crossed a constitutional line and became
impermissibly sectarian.

“To hold that invocations must be nonsectarian,” he wrote, “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 than is the case
under the town’s current practice of neither editing or approving prayers in
advance nor criticizing their content after the fact.”

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. joined all of
Justice Kennedy’s opinion, and Justices Antonin Scalia and Clarence Thomas
most of it.

Justice Kennedy did suggest that some prayers may be unacceptable if
offered consistently, including ones that “denigrate nonbelievers or religious
minorities, threaten damnation or preach conversion.” But without proof of “a
pattern of prayers that over time denigrate, proselytize or betray an impermissible
government purpose,” he wrote, “a challenge based solely on the content of a
prayer will not likely establish a constitutional violation.”

Town officials had tried, he said, to recruit members of various faiths to offer prayers.

In dissent, Justice Kagan said they had not tried hard enough. “So month in
and month out for over a decade,” she wrote, “prayers steeped in only one faith,
addressed toward members of the public, commenced meetings to discuss local
affairs and distribute government benefits.”

In 1983, in Marsh v. Chambers, the Supreme Court upheld the Nebraska
Legislature’s practice of opening its legislative sessions with an invocation from a
paid Presbyterian minister, saying that such ceremonies were “deeply embedded
in the history and tradition of this country.”

Justice Kagan, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer
and Sonia Sotomayor, said the case from Greece, N.Y., was different. The prayers
at the town board meetings were often explicitly sectarian, they said, and
residents were forced to listen to them in order to participate in government.

“No one can fairly read the prayers from Greece’s town meetings as anything
other than explicitly Christian — constantly and exclusively so,” Justice Kagan
wrote in her dissent in the case, Town of Greece v. Galloway, No. 12-696.
Moreover, she said, the clergy “put some residents to the unenviable choice of
either pretending to pray like the majority or declining to join its communal
activity, at the very moment of petitioning their elected leaders.”

In a concurrence with the majority opinion, Justice Alito called the dissent’s
qualms “really quite niggling.”

That comment, Justice Kagan responded, “says all there is to say about the
difference between our respective views.”

A version of this article appears in print on May 6, 2014, on page A1 of the New York edition with the headline: Town Meetings Can Have Prayer, Justices Decide.