A town board, a guest chaplain and why opening prayers survived the Court

Let me give you a thought, folks, and I want you to hold it in your head while I walk you through a case. The same men who wrote the First Amendment, the very same men, walked into a room in September of 1789, voted to pay chaplains to open their sessions with prayer, and three days later agreed on the wording of that Amendment and sent it to the states.

Same Congress. Same month. Same men.

Now, if the Establishment Clause means that no government body may ever begin its business with a prayer, then the Founders violated it before the ink was dry, and did it with the public's paychecks. You would have to believe that the people who wrote the clause did not understand it. That is the position of the folks who say opening prayers are unconstitutional, and I would like to meet the law professor who can explain, with a straight face, that he understands the First Amendment better than the First Congress.

The Supreme Court did not buy it. In Town of Greece v. Galloway in 2014, the Court held that opening a town board meeting with a prayer is constitutional. This is the story of how a small town in upstate New York got a great constitutional question answered, and why the answer was the right one.

Terms

• Legislative prayer. A prayer offered at the opening of a legislative body's session, typically by a chaplain or a guest clergy member.
• Establishment Clause. "Congress shall make no law respecting an establishment of religion," the first half of the religion clauses, applied to the states through the Fourteenth Amendment. The text and the drafting history are covered in Sixteen words on religion in the First Amendment, read phrase by phrase.
• Coercion. Pressure by the government that makes a citizen participate in a religious exercise. The idea is a test some justices apply under the clause.
• Sectarian. Specific to a particular denomination, such as a prayer that invokes the name of Jesus Christ or a particular doctrine.

The first case: Marsh v. Chambers (1983)

You cannot understand Greece without its grandfather. In 1983, in Marsh v. Chambers, a Nebraska state legislator, Ernest Chambers, challenged the Nebraska legislature's practice of opening each session with a prayer by a chaplain, paid with public funds. The chaplain was a Presbyterian minister, Robert Palmer, who had served for sixteen years. The lower court held that the practice violated the Establishment Clause.

The Supreme Court reversed, six to three, in an opinion by Chief Justice Burger. And here is the fun part: the Court did not apply its usual test. It looked at history. Burger noted that the Continental Congress had opened its sessions with prayer, and that the First Congress had appointed chaplains, one for the Senate and one for the House. The same Congress that drafted the First Amendment, he reasoned, did not see the practice as a violation of it. And the practice had continued, in Congress and in the states, ever since. In the Court's view, the "unique history" of legislative prayer established that it was within the framework of the Constitution.

That is history carrying the day. When the Founders' own practice is a matter of record, the reading of the clause that makes them hypocrites is not a plausible reading.

The record is worth knowing. The Continental Congress opened in September 1774 with a prayer, offered by an Anglican minister, the Rev. Jacob Duché, in Philadelphia. When the First Congress convened in 1789, the Senate chose Samuel Provoost, the Episcopal bishop of New York, as its chaplain, and the House chose William Linn, a Presbyterian minister. The act that provided for the chaplains' pay was passed three days before the final agreement on the Bill of Rights, on September 25, 1789. They were elected by the same members who voted on the Amendment, and they were paid by the same Treasury.

The facts in Greece

The Town of Greece sits on the edge of Rochester, in Monroe County, New York. Its Town Board holds monthly public meetings. Until 1999 the board opened its meetings with a moment of silence. Then a new supervisor began the practice of opening with a prayer. A town employee would call congregations listed in a local directory and invite a member of the clergy to give the invocation. The invitations were extended to congregations listed in the directory, and the town did not review the prayers in advance or tell the speakers what to say.

The result, over the years, was that most of the congregations in town were Christian, and nearly all of the guest chaplains over a period of years were Christian ministers. Many of the prayers invoked Jesus Christ or the Holy Spirit. In 2008, two residents, Susan Galloway, who is Jewish, and Linda Stephens, who is an atheist, complained that the prayers were overwhelmingly Christian and that they felt excluded when they came to address the board. The town responded by inviting a few speakers from other faiths, including a Jewish layman and a Baha'i leader, and a Wiccan priestess who asked for and was granted a turn. The two residents sued anyway.

The district court ruled for the town. The Second Circuit reversed, holding that the practice, in its overall pattern, gave the impression that the town was endorsing Christianity. The Supreme Court took the case.

The holding

On May 5, 2014, the Court ruled five to four for the town. Justice Anthony Kennedy wrote the opinion.

His reasoning went in these steps.

1. Marsh controls. The Court held that Marsh did not depend on the particular facts of the Nebraska legislature, and that it stood for the proposition that the Establishment Clause must be interpreted "by reference to historical practices and understandings." Legislative prayer is part of the fabric of the nation and is consistent with the Clause because the Framers accepted it.
2. No requirement of nonsectarian prayer. The respondents argued that Marsh had involved a chaplain who avoided mention of Christ and that the prayers should be limited to generic, nonsectarian ones. The Court said no. The First Congress's practice included prayers of the speakers' own faith. Courts are not in a position to review and edit prayers, and a rule requiring prayers to be bland would force government officials to become supervisors of religious speech, the exact entanglement the clause was meant to prevent. The Court said that the content of the prayer is not what matters, as long as the practice does not become a means to proselytize or to denigrate nonbelievers or religious minorities.
3. No requirement of a diverse roster. The town was not required to engineer a balance among faiths. It was enough that the town did not exclude anyone: its policy was to invite local clergy, and any minority member who wished to give a prayer was welcome. That the congregations in the town were mostly Christian reflected the town, not discrimination.
4. Coercion. Kennedy, in a part of his opinion joined by only two other Justices, Roberts and Alito, took up the argument that the prayers coerced citizens who had business before the board. He found no coercion on the facts. Adults, he said, are not likely to be coerced by a brief invocation. Nothing in the record showed that anyone was required to take part, or that the board treated people who did not join differently from those who did. Justices Thomas and Scalia, in a separate opinion, would have read coercion more narrowly still, as limited to actual legal compulsion, such as a penalty for failure to participate.

Justice Alito, joined by Justice Scalia, wrote a concurrence that defended the town and said the practice was no different from those the Court had approved. Justice Breyer wrote a dissent of his own.

The dissent, stated fairly

Justice Elena Kagan wrote the principal dissent, joined by Justices Ginsburg, Breyer and Sotomayor. She did not dispute Marsh. She distinguished it. Her argument, which I think is the strongest on the other side, ran like this.

In Marsh, the legislators prayed, in a chamber, before they conducted business, and the public was not a participant. At a town board meeting, ordinary citizens come to petition their government on a zoning matter or a permit. They stand in front of the board. And the prayer at the start of the meeting, in her view, put them in the position of joining a religious exercise, or standing out in front of their elected officials by not joining. She said that in a country as religiously diverse as ours, the town's practice, in which nearly all the prayers were from one faith, sent a message of exclusion. She argued that the town could have invited a wider range of speakers or asked speakers to use more inclusive language, and that the town's failure to do so mattered.

Kagan also wrote with a certain grace. She said that she had no quarrel with prayer itself or with the idea that a legislature might open its session with one. Her quarrel was with a setting where the citizen is not a bystander but a supplicant. I'd say that is a fair and thoughtful argument, and it deserves a fair answer.

The answer, in numbered points

1. The citizen is not forced to do anything. A person who does not wish to join a prayer may sit quietly, step out, arrive after it, or stand. The Court observed that nothing required participation, and that the board did not penalize anyone who did not join. Standing next to a prayer you do not share is a mild thing in a free country. The alternative is a rule that says citizens have a constitutional right never to be near a prayer.
2. Offense is not coercion. The Court has long said that the Constitution does not guarantee a person freedom from encountering views he dislikes. Adults who attend a public meeting are expected to tolerate a brief invocation as they tolerate other speech they disagree with.
3. The distinction from Marsh does not hold up in history. The First Congress's own practice was not limited to prayers heard in an empty chamber. Public ceremonies and proclamations throughout the early Republic included prayer, and the people who attended them were citizens. Washington's Thanksgiving proclamation of 1789 and the practice of inaugural invocations are in the record. The distinction in the dissent is a modern one.
4. Who writes the standard? If the test is whether prayers are inclusive enough, someone has to decide what is inclusive enough. That someone is a government official or a judge, and he would be reviewing the content of prayers, deciding which words are acceptable. A government that polices the wording of prayers has become an editor of religion, and that is what the First Amendment was meant to prevent.
5. The law protects the dissenter too. The Court did not say that a town may use prayer to proselytize or to disparage those who do not share it. If a board used the opening to chastise those who do not join, or conditioned favors on participation, that would be a different case. The ruling stands for a practice, not for abuse.

The absurdity

Here is the part where I smile, and you will forgive me. Think about what the opposite reading would require. It would say that the Constitution, which says Congress shall make no law respecting an establishment of religion, forbids the very practices that the Congress that wrote it adopted. It would say that the chaplains of the First Congress, elected and paid by the people who passed the First Amendment, were a constitutional crime in progress. It would say that the Founders agreed on the Establishment Clause in September and broke it the same week.

And we would have to believe that the Court spent two centuries not noticing. Imagine the headline: "Founders Violate Own Amendment, Experts Report, Two Hundred and Twenty Years Later." I suppose the reporters would be disappointed to discover that the Founders did not leave a note explaining themselves. But they did, in a way: they left a record. It is called history.

I do not mean to be unkind to the people who brought the case. They had a sincere concern, and the system gave them a hearing. They lost on the law. But the theory that every public expression of religion is an establishment is one of the strangest ideas in constitutional law, and the way to deal with strange ideas is to hold them against the text, the history and the practice, which is what the Court did.

What the ruling means and where it stops

The case sets a standard for legislative prayer in the bodies that practice it: no compelled participation, no proselytizing or denigrating, and an invitation policy that is open to everyone. It does not authorize a public school to lead prayer. That was settled in cases like Lee v. Weisman in 1992, and the Court's later decision in Kennedy v. Bremerton School District in 2022, which protected a coach's private prayer, did not alter that line. A graduation ceremony or a classroom is a different setting from a town board, because children are present and may feel pressure.

Citizens who want to take part, or object, can do so by the ordinary methods of democracy. If you think your town's invocation policy is too narrow, ask the board to open its roster. If you think the practice should end, ask the board. The Constitution leaves that choice to the people, and I find that a reasonable place for it. The Court did not say that every town must pray. It said that a town may.

For related cases, see Everson v. Board of Education, the school bus case that changed church and state, which began the modern "wall" doctrine, and Seven Christmas claims about the public square, checked against the law, which looks at the holiday display cases. And for the deeper roots of the idea that public life and faith belong together, see Why Washington's Farewell Address called religion and morality indispensable.

The case in brief

1. Town of Greece v. Galloway (May 5, 2014) held, five to four, that opening town board meetings with prayer by guest clergy is consistent with the Establishment Clause.
2. The ruling rests on Marsh v. Chambers (1983) and on the practice of the First Congress, which appointed paid chaplains in 1789, in the same weeks it finished the First Amendment.
3. The Court refused to require nonsectarian prayers or a balanced roster of faiths, because judges and officials should not edit prayers.
4. Justice Kagan's dissent, that citizens petitioning a town board are not mere onlookers, is the strongest case on the other side, but a brief invocation does not compel participation, and offense is not coercion.
5. The Founders' own practice settles the question: no one should believe the authors of the clause wrote it to condemn what they did the same week.

What you can do: attend your own town board or county commission meeting, ask how it chooses its invocation speakers if it has one, and read its written policy.