In May of 2014, the U.S. Supreme Court decided Town of Greece v. Galloway, a case in which a town’s practice of opening town meetings with a prayer was challenged as violating the First Amendment to the U.S. Constitution. The case impacts cities in different ways and city officials need to carefully consider the ruling if they wish to consider opening their city council meetings with a prayer.
The Town of Greece Lawsuit
Starting in 1999, the town of Greece, New York began opening their meetings with a roll call and pledge of allegiance, following which a prayer giver was invited to step to the front of the room and deliver a prayer. Prayer givers were solicited by a town employee, who would call congregations listed in a local directory until she found a minister available for that month’s meeting. No person or religion was excluded from delivering the prayer. However, nearly all congregations in Greece were Christian, thus nearly all of the invocations delivered before Greece town meetings were given by Christian ministers. Greece provided no guidance to the ministers regarding the content of the invocations.
Susan Galloway and others who attended Greece town meetings complained that the prayers violated their religious or philosophical views. In one meeting she told board members that she found the prayers “offensive,” “intolerable,” and an affront to a “diverse community.” Finally, she and others filed suit, claiming that the town violated the First Amendment by preferring Christians over other prayer givers and by sponsoring sectarian prayers. They asked the Court to rule that the town should be limited to allowing “inclusive and ecumenical” prayers that referred to a generic god.
Although the district court upheld the prayer practice, on appeal the Second Circuit Court of Appeals instead held that some aspects of the Town of Greece prayer program, viewed in totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity and in so doing violated the so-called Establishment Clause of the First Amendment.
The U.S. Supreme Court, on a final review of the case, ruled that the Town of Greece legislative prayer practice was lawful and did not violate the First Amendment. The Court observed that legislative prayer, although religious in nature, has long been understood as compatible with the First Amendment. The Court pointed to a lengthy historical precedent of opening local legislative meetings with a prayer. The Court also noted that such prayers are a tolerable acknowledgment of beliefs that are widely held, not a “first, treacherous step toward establishment of a state church.”
The decision clarifies the rules for cities that want to open council meetings with a legislative prayer. Cities are specifically allowed to open city council meetings with a prayer. The Supreme Court rejected arguments that the prayer must be of a generic nature. The prayer can be sectarian, and the prayer can be given in the prayer giver’s own language. The person offering the prayer is not required to exclude any specific references connected to that person’s religion. For example, references to Jesus are allowed in the invocation. Also, the Supreme Court specifically held that there is no requirement to establish numerical equality among prayer givers of different religions. Cities are not required to search beyond their borders for religious leaders in order to ensure that a wide variety of religions and beliefs are represented among prayer givers.
The Supreme Court did make it clear that there are some restrictions upon offering an invocation at city council meetings:
- Cities cannot allow a prayer giver to disparage or vilify other religions.
- Prayer givers are not allowed to proselytize – to attempt to recruit or persuade others to join their faith.
- Persons attending the council meeting cannot be coerced into engaging in the prayer – for example required to stand or to bow their heads.
- While numerical equality among prayer givers from different faiths is not required, the city cannot discriminate in the selection of prayer givers.
- There cannot be any implication that city council actions could be affected by participation or non-participation in the opening prayer.
Finally, here are some suggested practices to consider if your city has an opening prayer before city council meetings.
- Have the prayer before the beginning of the legislative part of the city council meeting. This helps to make it clear that the prayer simply helps to lend gravity to the occasion and to reflect upon common ideals and values.
- Ask the prayer giver to face the city council and mayor, not any persons who may be in the audience. This emphasizes that the invocation is directed at the legislative body, not at any persons who may be in attendance at the council meeting.
- Make it clear that members of the public in attendance at council meetings are not required to participate in any prayer.
- Establish a written policy concerning the opening prayer, and make it easily accessible to the public.
- Send your city’s written policy concerning prayer before council meetings to all religious institutions in the city. The minority opinion in the Town of Greece case was highly critical of Greece for failing to make a bona fide attempt to reach out to non-Christian denominations for prayer givers. A genuine effort to be inclusive will help to insulate an opening prayer program from criticism.
- Do not edit prayers or suggest content. It would be appropriate to describe the purpose of an opening invocation as setting a suitable tone for conducting the business of the city.
- Contact your city attorney for assistance in preparing a written policy and for guidance.