U.S. Supreme Court Will Decide Legality of Bunnell’s Government Prayers, Via Greece

By this time next year, Bunnell’s practice of starting its city commission meetings with a prayer will either be declared unconstitutional or given the U.S. Supreme Court’s blessing.

For the first time in 30 years, the court agreed to revisit the matter of prayers at public meetings on appeal from a case in New York, where the 2^nd Circuit Court of Appeals last year ruled unconstitutional a town’s practice of having clergy deliver a prayer at the beginning of its government meetings.

The case bears numerous similarities with Bunnell’s practices. Those local practices have gone unchallenged until now. But they remain among the most brazen displays of expressly Christian prayer at government meetings, being conducted not by clergy or invited guests but by city commissioners themselves.

The case the Supreme Court agreed to hear originated in the Town of Greece, a suburb west of Rochester, N.Y. Its five-member Town Board meets monthly. Until 1999, meetings began with a moment of silence. That year, Town Supervisor John Auberger began inviting local clergy to deliver a prayer—after the Pledge of Allegiance, but also after the meeting is formally called to order. The clergy member making the prayer, termed the “chaplain of the month,” usually asks audience members to stand, bow their head and join in the prayer. One of them asked the assembly to recite the Lord’s Prayer together. Another criticized those who objected to the practice as “ignorant” and in the “minority.” The prayer is listed on the agenda. It’s noted in the meeting minutes.

The process is virtually identical to that of the Bunnell City Commission, down to the noting of the prayer in the minutes, with the exception of the commissioners leading the prayer.

As in Bunnell, Greece has no formal policy on who will present the prayer, on what constitutes permissible content of prayers or any other aspect of the practice. Greece claims anyone may request to give an invocation, of any religion, including atheists or those who do not adhere to a particular religion. The town says it has never denied such a request. Nor had it granted one until some residents started to complain: the town’s unwritten policy was neither spoken nor publicized.

So from 1999 to 2007, every prayer-giver was Christian. In 2008, residents Susan Galloway—who is Jewish—and Linda Stephens—an atheist—complained about the practice. To appease them, the city scheduled three non-Christian prayer services in 2008, the year the two women filed the lawsuit. The town then returned to Christian prayers exclusively, with repeated references to “Jesus,” “Jesus Christ,” “Your Son,” or the “Holy Spirit,” and always delivered from behind a podium adorned with the town’s seal and spoken through the city’s public address system. In Bunnell, commissioners sit below their seal and deliver their prayers into the record.

For many Greece town officials, attending the meetings is mandatory.

“We need not ‘embark on a sensitive evaluation’ or ‘parse the content of a particular prayer,’ []to recognize that most of the prayers at issue here contained uniquely Christian references and that prayers devoid of such references almost never employed references unique to some other faith,” Judge Guido Calabresi wrote for a unanimous panel of three judges of the Second Circuit in a 2012 ruling. Calabresi quoted from the last Supreme Court decision to take on prayer at government meetings.

“We ascribe no religious animus to the town or its leaders,” Calabresi’s ruling continued. “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. There is no doubt that the town seeks to convey respect for the invocations given at its meetings. But efforts to show respect for a belief espoused in a legislative prayer entail a concomitant obligation to demonstrate respect for the beliefs of others.” (The full decision is below.)

That Supreme Court’s 1983 decision found that the Nebraska state legislature’s tradition of paying a (Presbyterian) clergyman to offer a prayer at the beginning of legislative sessions was constitutional.

“In light of the unambiguous and unbroken history of more than 200 years,” a 6-3 court had ruled then, “there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.” But the court also noted that the “content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”

All nine members of that court have since died or retired.

But Rev. Robert Palmer, the Presbyterian chaplain at the center of the decision, is still alive, and contributed an amicus brief to the current Supreme Court case on behalf of the Town of Greece.

As a defendant in the 1983 case (Marsh v. Chambers), the brief states, Palmer “is concerned about recent cases, like the Second Circuit’s here, which retreat from Marsh’s holding. Rev. Palmer believes that legislative bodies which desire to exercise their First Amendment right of solemnly invoking divine guidance should not be impaired by court rulings that inject uncertainty and discourage assemblies from exercising that right. More directly, he believes that his own past practice lies within the American constitutional tradition, and that it—and other practices like it today and in the future across the Nation—are worth this Court’s continued vindication.”

A Florida case also argued in federal court tested that very issue when, in March, a three-judge panel of the 11^th Circuit Court of Appeals, which has jurisdiction over all of Florida—and is distinctly more conservative than the Second Circuit—ruled unanimously that the Lakeland City Commission’s custom of starting its meetings with a prayer was constitutional.

But the Lakeland commission had altered its custom significantly after residents began to complain. The prayer had been part of the meeting’s regular agenda. It no longer was, after the complaints, taking place before the first gavel, and not being recorded in the minutes. Those offering the prayer were invited guests, and never members of the commission. And the city developed an extensive database of members of the clergy in Polk County to draw from, leaving open an invitation to anyone else who would present an invocation. The commission, however, left silent any mention of non-religious members of the community, and the case did not address that silence.

In the Greece, N.Y. case, Galloway and Stephens are represented by Americans United for the Separation of Church and State, the Washington, D.C.-based organization. (Disclosure: Rabbi Merrill Shapiro, president of Americans United’s national board of trustees, chairs the FlaglerLive board of directors.)

“A prayer in Jesus’s name makes all non-Christians as though feel as though they are second class citizens or of lesser standing than those of he dominant religion, and that truly makes us feel as though we don’t belong,” Shapiro said. “We outsiders feel it’s fueled by dominionism, that is the belief that America is a Christian country and it is best governed by Christian laws, and that there are segments of Christianity–by no means all Christians–that it is the role of Christianity to dominate the government, the media, the military, education and business.”

A town council meeting isn’t a church service, and it shouldn’t seem like one,” said Rev. Barry W. Lynn, executive director of Americans United in a release. “Government can’t serve everyone in the community when it endorses one faith over others. That sends the clear message that some are second-class citizens based on what they believe about religion.”

Americans United Legal Director Ayesha N. Khan, who directed the litigation for Americans United and will argue the Town of Greece v. Galloway case before the Supreme Court, said the justices should uphold the lower court’s ruling.

“Legislative bodies should focus on serving the community and stay out of the business of promoting religion,” Khan said.

The U.S. Supreme Court, which will end its current term later this week, accepted the case in late May. The case will be argued when the court reconvenes in October, with a decision rendered by June next year.

Download Galloway v. Greece: the 2nd Circuit Court of Appeals Decision, 2012