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Prayer at School Board Meetings after Town of Greece v. Galloway

McGuireWoods | 2CONFIDENTIAL

The Conflict between the Establishment Clause and the Free Exercise Clause

Establishment Clause – A state “shall make no law respecting an establishment of religion…”

A “blurred, indistinct and variable barrier…” Coles v. Cleveland Bd. of Educ., 171 F.3rd 371, 376 (6th Cir. 1999)

“The inquiry remains a fact-specific one that considers both the setting in which the prayer arises and the audience to whom it is directed.” Town of Greece v. Galloway


Setting of Town of Greece

A suburban city on the southern shore of Lake Ontario Mostly Christian community Practice of opening their town council meetings with prayer Prayer “rationale” and policy tracked permissive language from

prior cases: intended to place the council members in a solemn frame of mind, invoke divine guidance for the proceedings, and follow the traditions of Congress and many state legislatures.


Prior case history

The history of prayer before civil proceedings goes back to the First Continental congress opening its session with a prayer

U.S. Supreme Court recognized the legitimacy of ceremonial prayer in Marsh v. Chambers, a 1983 decision

“The opening of sessions of legislative and deliberative bodies with prayer is deeply embedded in the history and tradition of this country.”


Marsh v. Chambers, 463 U.S. 783 (1983)

The Court first looked at the context The same Presbyterian pastor had been selected for 2 year terms

over 16 years as chaplain to the Nebraska legislature, earning $319.75 per month

He offered prayer in the “Judeo-Christian tradition” before each session of the legislature

One legislator sued under the Establishment Clause District Court said the prayer was Constitutional, but paying the

minister was not The 8th Circuit Court of Appeals struck down both the prayer

and the pay


Marsh v. Chambers U.S. Supreme Court reversed and upheld the prayer and the pay “Clearly, the men who wrote the First Amendment Religion

Clause did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.”

“…their actions reveal their intent.” This historical framework becomes important as the cases

develop


But does Marsh apply to School Boards?

“Here, the individual claiming injury by the practice is an adult, presumably not susceptible to ‘religious indoctrination.’” (emphasis added)

“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.”


From Marsh to Greece

Coles . Cleveland Bd. Of Educ., 171 F.3rd 369 (6th Cir. 1999) The school board instituted a new practice of opening meetings

in prayer in 1992 Local clergy were invited by the Board Chair, who sometimes

gave the prayer himself He always said “Amen” at the end of every prayer Jesus was named on many occasions In 1996 Reverend Sullivan was elected chair and he gave the

prayers thereafter A student and a teacher sued under the Establishment Clause


Coles

The trial court applied Marsh Court said a close case, but better to err on the side of the case

law that upholds the principles of the Establishment Clause “Coercion of impressionable minds is to be avoided” “Endorsement of religion is to be prohibited in the public school

context.” But the trial court also said “Marsh … is basically a historical

aberration.”


Coles

School Board appealed to 6th Circuit – affirmed “Although we conclude that the school board’s practice in this

case violates the Establishment Clause, we do not mean to imply that religion must be kept entirely out of the public schools. Certainly students might themselves wish to pray during the time they spend at school.”

In this case, “the school board’s involvement in promoting prayer cross[ed] the line of constitutional infirmity.”


Bacus v. Palo Verde Unified S.D. (9th Cir 2002)

School board meetings began with prayer Usually by the same board member or an invited guest Prayers usually “in the name of Jesus” Teacher’s association officers who regularly attended sued District Court applied Marsh and upheld the practice 9th Circuit reversed and struck down the practice 9th Circuit focused on the many references to “Christ” even after

complaints were made (not on the question whether children might have been present)


Doe v. Tangipahoa S. Bd. (5th Cir. 2007)

Since at least 1973 prayers had been offered by board members, board chair, administrators, teachers, former students and a minister

Regularly mentioned “Lord” “God,” and “Jesus Christ” The Board rejected a proposed policy that prayers would be only

by the Board members, and would be non-sectarian 5th Circuit panel decided the establishment Clause was violated

because the practice demonstrated “a preference for one particular sect or creed” (Christianity)


Doe v. Indian River S.D. (3rd Cir. 2011) School board meetings opened in prayer by various members of the

board on a rotating basis – some prayed, and some used a “moment of silence”

Policy was that prayers be non-sectarian, and participation not required by attendees

District court applied Marsh and upheld prayers 3rd Circuit said Marsh was not the right test here, because students

involved, and used the traditional Lemon test (focuses on what is the intent of the public body and the resulting effect of engaging in the practice)

Struck down practice because of presence of students “Free public education was virtually nonexistent at the time the

Constitution was adopted” so Marsh’s historical approach does not work.


Doe v. Indian River (cont.)

Second prong of Lemon says “a state’s practice can neither advance nor inhibit religion” (religious neutrality)

“Even assuming the Board’s primary purpose is to solemnify the meetings … its primary effect is to advance religion and it fosters excessive government entanglement in religion.”

Therefore violates the Establishment Clause


Greece v. Galloway

Context matters The town of Greece started their meetings with prayer “Deliberative and solemn frame of mind” “Tradition set by Congress” Pushing all of the Marsh buttons Civic and religious themed In practice, Christian clergy almost always offered the prayers


Town of Greece v. Galloway

Galloway was Jewish and Stephens was atheist Sued alleging Establishment Clause violation They argued the practice (regardless of the stated policy) had the

effect of establishing the Christian faith as the official religion of the Town of Greece (trying to invoke Lemon test, not Marsh test)

Rather than trying to strike down all prayer, they sought an injunction that would limit the Town to “inclusive and ecumenical” prayer that referred only to a “generic God” and would not favor any one faith or belief


Lower Court Decision

Ruled in favor of the Town Relied on Marsh “Legislative prayer” like that in Congress may be overtly

sectarian Did not violate Establishment Clause


2nd Circuit Decision

Reversed “[A] legislative prayer practice that, no matter how well-

intentioned, conveys to a reasonably objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause.”


Town of Greece v. Galloway – Supreme Court

Plurality decision written by Justice Kennedy, who has been the tie breaker in almost all of the recent 5-4 decisions from the Court

Ruled for Town of Greece – no violation of the Constitution Returned to themes of Marsh Legislative prayer has a rich history going back to the Framers of

the Constitution and the earliest Congress Lends gravity to public business Reminds lawmakers to put aside petty differences A tolerable acknowledgement of widely held beliefs, not an

attempt to establish a state church


Greece v. Galloway

Legislative prayers may have sectarian content (“Jesu” is not a four-letter word that must be banned)

Not the role of courts to “vet” the content of prayers against some sectarian standard

Not the role of courts or boards to be “censors of religious speech” – that is a greater danger for the state than allowing a legislative prayer before a meeting begins

Prayer should be at the beginning, solemn and respectful in tone, and invoke common and shared ideals and goals as the public board embarks on the business of governing


But here’s the rub for school boards

“Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.”

“Adults often encounter speech they find objectionable….” “Neither choice [to exit or remain in a meeting] represents an

unconstitutional imposition as to mature adults who presumably are not readily susceptible to religious indoctrination or peer pressure.”

What does this mean for school boards?


Advocacy groups are already squaring off

ACLU “Official religious favoritism should be off limits under the

Constitution” “The court authorized town councils to marginalize nonbelievers

and those of minority religions”


Advocacy groups

Freedom From Religion Foundation On their website, they answer the question, Is it legal to have

prayer before school board meetings? NO “Public school boards are an integral part of the public school

system and must not advance or endorse religion.” They offer to defend you in court if you want to challenge a

school board who prays


Americans United for Separation of Church and State

“School boards still can’t open with prayers.” Greece is limited to legislative prayers “Public schools did not exist at the time of the founding, so there

is no historical justification for prayers at school board meetings.” “Every court to consider the question has held that the

Constitution prohibits school boards from opening their meetings with prayer.”


But for every “NO” there is a “YES”

American Center for Law and Justice “The Supreme Court reaffirmed that prayer before legislative

meetings is constitutional.” “It is not limited to nonsectarian (i.e. generic) prayer.”


Alliance Defending Freedom

Provided counsel for the Town of Greece “Opening public meetings with prayer is a cherished freedom of

Americans that the authors of the Constitution themselves practiced. Speech censors should have no power to silence volunteers who pray for their communities just as the Founders did.”

ADF offers pro bono legal assistance to help localities develop policies, and promises they will defend any policy that they help craft.


Hudson v. Pittsylvania County

Federal Court in Danville had issued a permanent injunction limiting the practice of prayer at county board of supervisors meeting prior to Greece being decided.

In August, the Court reconsidered its ruling in light of Greece The Court said that in light of Greece, the content of such

prayers should not be dictated by the board, and they need not be “generic or nonsectarian.”

The Court said that the Board of Supervisors had been giving the prayers themselves, unlike the board in Greece, and that meant that the Board itself was advancing one faith (Christianity) – the injunction against that practice continued.


Hudson v. Pittsylvania County

The Board of Supervisors often asked the assembled citizens to stand, which directed them to participate in the prayers. That practice violated Greece in the opinion of the court.

Bottom line - It was the active role of the supervisors in directing and giving the prayers that the court felt offended the Establishment Clause, but the court softened its injunction somewhat to clarify that the act of legislative prayer was Constitutional, it should be given by volunteers, it should not be directed or controlled by the Board, and if the volunteers gave a sectarian prayer that was not a Constitutional violation.


So, doggone it, answer the question already!!

Can we pray before our school board meetings or can’t we?

YES? NO?MAYBE?


Best answer is “Probably”

The Court does not make a distinction between different kinds of governmental bodies – it speaks of a general legislative tradition going back to the Founders – the argument “there were no public schools then” is probably a weak argument at best.

BUT, the argument FOR coercion is stronger if children are present, because of the several times Justice Kennedy talks about “adults” being less susceptible to peer pressure and foreign ideas


If we want to do it, how should we?

Do not pressure public participation, like asking people to stand up. Encourage that the prayers be primarily “legislative” or

“ceremonial” in nature – connecting lawmakers to the country’s rich legislative history and invoking wisdom and seriousness in the process.

Allow all religions and beliefs the opportunity to participate at the opening of the civic proceeding (not each time, but by signing up in advance and rotating).

Have a policy that encourages solemn and respectful prayer. Have guests, not board members, deliver the prayers.


What to avoid

Discourage prayers that denigrate nonreligious or minority religious folks

Discourage prayers that focus on doctrine (damnation, conversion)

You are not controlling content, but you are guiding the pray-ersin a respectful and inclusive direction

Don’t direct the public to join in the prayer – they may, but don’t make anyone who does not feel uncomfortable

Don’t dissuade the public from coming or going during the prayers


Questions or Comments?

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