Posted On: May 28, 2012

Second Circuit Finds Town Prayer Practice Violates Establishment Clause

The Second Ciircuit Court of Appeals found that a town's practice of conducting prayers at the begining of town board meetings, as a result of the totality of the manner in which the prayer leaders were selected and the prayers were conducted, violated the Establishment Clause of the United States Constitution. In Galloway v. The Town of Greece, the Court reversed the district court's grant of summary judgment for the Town and remanded the matter for additional action based upon this decision. As the Court emphasized that it's determination was very much driven by the facts of this case, it is important In understanding the decision to examine some of the specific findings by the Court.

"A substantial majority of the prayers in the record contained uniquely Christian language. Roughly two-thirds contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.” Within this subset, almost all concluded with a statement that the prayer had been given in Jesus Christ’s name. Typically, prayer-givers stated something like, “In Jesus’s name we pray,” or “We ask this in Christ’s name.” Some prayer-givers elaborated further, describing Christ as “our Savior,” “God’s only son,” “the Lord,” or part of the Holy Trinity. One prayer, for example, was given “in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever.”

Reciting the history of the case, the Court noted the Plaintiffs originally challenged:

"aspects of the prayer practice under the Establishment Clause. They made two arguments before the district court: (1) that the town’s procedure for selecting prayer-givers unconstitutionally preferred Christianity over other faiths, and (2) that the prayer practice was impermissibly “sectarian.” In support of their position, the plaintiffs reiterated the same objections they had raised before the Town Board prior to filing suit. They claimed, as an initial matter, that the prayer practice aligned the town with Christianity, and that it therefore established a particular religion. They also pointed out that the prayer practice employed language unique to specific religious sects, and asserted that in so doing it established religion generally. The plaintiffs again did not distinguish between these arguments, nor have they done so on appeal...As to the plaintiffs’ challenge regarding the town’s prayer selection process, the district court held that the plaintiffs had failed to advance any credible evidence that town employees intentionally excluded representatives of particular faiths. Id. ...As to the plaintiffs’ contention regarding the sectarian content of the prayers, the district court held that, under binding Supreme Court case law, the Establishment Clause does not foreclose denominational prayers. The court concluded for these, and for a number of case-specific reasons, that the plaintiffs had failed to show that the town’s prayer practice had the effect of establishing the Christian religion."

However, on appeal Plaintiffs conceded certain of the findings of the District Court and instead focused on more narrow issues.

"This appeal presents a narrow subset of the questions raised before the district court. Galloway and Stephens do not assert that the district court erred in dismissing their claims against Auberger. They have, moreover, expressly abandoned the argument that the town intentionally discriminated against non-Christians in its selection of prayer-givers. Accordingly, the only live issue on appeal is whether the district court erred in rejecting the plaintiffs’ assertion that the town’s prayer practice had the effect, even if not the purpose, of establishing religion....As far as we are aware, this is the first instance in which this court has had occasion to consider the validity of a legislative prayer practice under the Establishment Clause."

After reviewing cases addressing similar issues the Court determined the test it must apply is "whether the town’s practice, viewed in its totality by an ordinary, reasonable observer, conveyed the view that the town favored or disfavored certain religious beliefs."

The Court held:

"The town’s process for selecting prayer-givers virtually ensured a Christian viewpoint. Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice, and nearly all of the prayers thereafter. In the town’s view, the preponderance of Christian clergy was the result of a random selection process. The randomness of the process, however, was limited by the town’s practice of inviting clergy almost exclusively from places of worship located within the town’s borders. The town fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town. Such residents may be members of congregations in nearby towns or, indeed, may not be affiliated with any congregation. The town is not a community of religious institutions, but of individual residents, and, at the least, it must serve those residents without favor or disfavor to any creed or belief....the town neither publicly solicited volunteers to deliver invocations nor informed members of the general public that volunteers would be considered or accepted, let alone welcomed, regardless of their religious beliefs or non-beliefs. Had the town publicly opened its prayer practice to volunteers in this way, its selection process could be defended more readily as random in the relevant sense."

The Court went on to explain:

"Absent any effort on the part of the town to explain the nature of its prayer program to attendees, the rare handful of cases, over the course of a decade, in which individuals from other faiths delivered the invocation cannot overcome the impression, created by the steady drumbeat of often specifically sectarian Christian prayers, that the town’s prayer practice associated the town with the Christian religion."

In discussing its finding that the prayers gave the impression of being part of Town policy, the Court found not only a level of participation by Town Board members but further stated:

" The invitation to audience members to participate in the prayer, particularly by physical means such as standing or bowing their heads, placed audience members who are nonreligious or adherents of non-Christian religion in the awkward position of either participating in prayers invoking beliefs they did not share or appearing to show disrespect for the invocation, thus further projecting the message that the town endorsed, and expected its residents to endorse, a particular creed."

-Steven Silverberg