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LEADING CASES
CONSTITUTIONAL LAW
First Amendment — Establishment Clause —
Legislative Prayer — Town of Greece v. Galloway
Over three decades ago, in Marsh v. Chambers , 1 the Supreme Court
upheld the constitutionality of a state legislature’s practice of opening
each session with a prayer by a chaplain paid with state funds. 2
Rather than applying its at-the-time customary Establishment Clause
test, the Lemon test, 3 the Court based its decision on the long, unbro-
ken history of legislative prayer dating back to the time of the drafting
of the First Amendment. 4 Since Marsh , the Court has taken a bewil-
dering array of different approaches to the Establishment Clause, leav-
ing it unclear which test should govern Establishment Clause inquiries
generally, as well as how the Court might approach, specifically, an-
other legislative prayer case. 5 Last Term, in a 5 – 4 decision in Town of
Greece v. Galloway ,^6 the Court reaffirmed Marsh and again relied on
history in upholding a town’s practice of opening its monthly town
board meetings with a prayer offered by volunteers from the local
community. 7 While the decision did little to alleviate the doctrinal
muddle of the Court’s Establishment Clause jurisprudence, Greece
highlights the deep divisions among the Justices on a central question
underlying the Establishment Clause: what the government is required
to do, or even permitted to do, to accommodate religious pluralism in
an increasingly diverse society.
In 1999 , Greece, a town in upstate New York, began a practice of
inviting local members of the clergy to lead prayer sessions to open its
monthly town board meetings.^8 Employees from the town’s Office of
1 463 U.S. 783 ( 1983 ).
(^2) See id. at 795. (^3) To survive a challenge for a violation of the Establishment Clause under the Lemon test, a
government practice ( 1 ) “must have a secular legislative purpose”; ( 2 ) must not have a “principal or primary effect” of either “advanc[ing] [or] inhibit[ing] religion”; and ( 3 ) “must not foster ‘an ex- cessive government entanglement with religion.’” Lemon v. Kurtzman, 403 U.S. 602 , 612 – 13 ( 1971 ) (quoting Walz v. Tax Comm’n, 397 U.S. 664 , 674 ( 1970 )). (^4) Marsh , 463 U.S. at 792. (^5) See generally Steven G. Gey, Reconciling the Supreme Court’s Four Establishment Clauses ,
8 U. PA. J. C ONST. L. 725 ( 2006 ) (reviewing various approaches employed by different Justices). (^6 134) S. Ct. 1811 ( 2014 ). (^7) See id. at 1823 – 24 , 1828. (^8) Id. at 1816. The meetings had both legislative and adjudicatory functions and were attended
by members of the public as well as by town board members. Id. at 1846 (Kagan, J., dissenting) (“[The meetings] serve assorted functions, almost all actively involving members of the public. The Board may swear in new Town employees and hand out awards for civic accomplishments; it always
192 HARVARD LAW REVIEW [Vol. 128 : 191
Constituent Services initially selected these volunteer “chaplains of the
month” by calling congregations within town limits based on a list in a
local directory; over time, town employees began to rely on a list of
“Town Board Chaplains” who had previously accepted those invita-
tions and had agreed to return in the future. 9 Because “nearly all of
the congregations in town were Christian,” all of the participating min-
isters between 1999 and 2007 were Christian. 10 The town provided no
guidelines or restrictions on the content of the prayers, and the minis-
ters composed prayers that contained both civic and distinctly Chris-
tian themes. 11 While the town never denied anybody the opportunity
to give prayer, neither did it publicize its all-comers policy. 12
In 2010 , two local residents brought suit alleging that the town’s
prayer practice violated the Establishment Clause for two reasons: the
town intentionally excluded non-Christian prayer, and the town im-
permissibly permitted sectarian prayer. 13 The district court awarded
summary judgment to the town on the basis that the town’s clerical
employees exercised no impermissible preference for Christianity in se-
lecting prayer-givers, 14 and that Marsh did not require legislative
prayers to be nonsectarian.^15
The Second Circuit reversed. 16 Writing for a unanimous panel,
Judge Calabresi found that, under the totality of the circumstances as
viewed by a reasonable objective observer, the town’s prayer practice
conveyed an impermissible “official affiliation” with Christianity. 17 The
fact-specific decision relied on “the interaction of the facts present in
this case” rather than “any single aspect of the town’s prayer practice.” 18
The Supreme Court reversed. Writing for the Court, Justice Kenne-
dy^19 began by emphasizing the long tradition of legislative prayer in the
United States. He referred to the Court’s previous case on legislative
provides an opportunity... for citizens to address local issues and ask for improved services or new poli- cies... ; and it usually hears debate on individual applications from residents and local businesses to ob- tain special land-use permits, zoning variances, or other licenses.” (citation omitted)). (^9) Galloway v. Town of Greece, 681 F. 3 d 20 , 23 – 24 ( 2 d Cir. 2012 ); see also Town of Greece , 134
S. Ct. at 1816. (^10) Town of Greece , 134 S. Ct. at 1816. (^11) Id. ; see also id. at 1848 (Kagan, J., dissenting) (“About two-thirds of the prayers given over
this decade or so invoked ‘Jesus,’ ‘Christ,’ ‘Your Son,’ or ‘the Holy Spirit... .’”). (^12) Id. at 1816 (majority opinion); see also id. at 1852 (Kagan, J., dissenting). (^13) Galloway v. Town of Greece, 732 F. Supp. 2 d 195 , 196 – 97 (W.D.N.Y. 2010 ). (^14) Id. at 219. (^15) Id. at 241. (^16) Galloway v. Town of Greece, 681 F. 3 d 20 , 22 ( 2 d Cir. 2012 ). In their appeal, the plaintiffs
dropped the intentional discrimination argument. Thus, the only issue considered by the Second Circuit was whether the town’s prayer practice had the effect of establishing religion. Id. at 26. (^17) Id. at 34. (^18) Id. at 33. (^19) Justice Kennedy was joined by Chief Justice Roberts and Justice Alito. Justices Scalia and
Thomas joined in part.
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was not sufficiently coercive to raise constitutional concerns. 29 He rea-
soned that the history of legislative prayer mitigated any coercive ef-
fect because:
It is presumed that the reasonable observer is acquainted with [the] tradi-
tion [of legislative prayer] and understands that its purposes are to lend
gravity to public proceedings and to acknowledge the place religion holds
in the lives of many private citizens, not to afford government an oppor-
tunity to proselytize or force truant constituents into the pews.^30
While he noted that the prayer would have been impermissibly coer-
cive “if town board members [had] directed the public to participate in
the prayers, singled out dissidents for opprobrium, or indicated that
their decisions might be influenced by a person’s acquiescence in the
prayer opportunity,” there was no evidence that such impermissible co-
ercion had taken place. 31 Thus, Justice Kennedy found no conflict be-
tween the town’s practices and the Establishment Clause.
Justice Alito concurred, 32 writing separately to suggest that Justice
Kagan’s dissent would render opening prayers legal in theory but im-
possible in practice. 33 A requirement that prayer be nonsectarian
would burden the town by requiring it to prescreen and edit prayers to
ensure that they met the “daunting, if not impossible” requirement of
being acceptable to members of all religions. 34 Similarly, demanding
anything more than a good faith effort from towns to invite individu-
als of many faiths to give opening prayers would create too high a bar,
“pressur[ing] towns to forswear altogether” legislative prayer in order
to avoid constitutional challenges. 35
Justice Thomas concurred in part and concurred in the judgment. 36
Writing for himself only, Justice Thomas reiterated his position that
the Establishment Clause should be understood as a federalism provi-
sion protecting state churches from the establishment of a national
(^29) Town of Greece , 134 S. Ct. at 1825 – 27 (opinion of Kennedy, J.). Justice Kennedy had previ-
ously suggested that coercion is the proper test for Establishment Clause analysis. See Lee v. Weisman, 505 U.S. 577 , 587 ( 1992 ) (“[G]overnment may not coerce anyone to support or partici- pate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’” (second alteration in original) (quoting Lynch v. Donnelly, 465 U.S. 668 , 678 ( 1984 ))); see also County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573 , 659 – 60 ( 1989 ) (Kennedy, J., concurring in the judgment in part and dissenting in part). (^30) Town of Greece , 134 S. Ct. at 1825 (opinion of Kennedy, J.). (^31) Id. at 1826. The fact that some nonparticipants might feel the need to leave the room or
remain silent did not “represent[] an unconstitutional imposition as to mature adults, who ‘pre- sumably’ are ‘not readily susceptible to religious indoctrination or peer pressure.’” Id. at 1827 (quoting Marsh v. Chambers, 463 U.S. 783 , 792 ( 1983 )). But cf. Lee , 505 U.S. at 592 (finding “heightened concerns” about “subtle coercive pressure” in school context). (^32) Justice Alito was joined by Justice Scalia. (^33) Town of Greece , 134 S. Ct. at 1831 (Alito, J., concurring). (^34) Id. at 1830. (^35) Id. at 1831. (^36) Justice Thomas was joined in part by Justice Scalia.
2014 ] THE SUPREME COURT — LEADING CASES 195
religion and should not be incorporated against the states. 37 Then,
writing for himself and Justice Scalia, he recited a narrower under-
standing of the coercion test that prohibits only “actual legal coercion,”
not merely psychological coercion. 38
Justice Breyer dissented. He agreed with the Second Circuit’s view
that the decision should be “fact-sensitive” and consider the “totality of
the circumstances.” 39 Finding “no test-related substitute for the exer-
cise of legal judgment,” 40 Justice Breyer would have “applied [his] le-
gal judgment to the relevant facts” and found an Establishment Clause
violation.^41
Justice Kagan wrote the principal dissent. 42 In her view, the town
violated the “norm of religious equality” by treating minority citizens
as outsiders at the very moment they sought to exercise their right to
engage in participatory democracy. 43 While she expressed continued
agreement with the Court’s decision in Marsh , she distinguished
Marsh on the basis that the prayer there had opened a legislative floor
session in which citizens had no direct role and often were not even
present; 44 by contrast, Greece’s board meetings involved participation
by ordinary citizens, who were present in order to “engage with and
petition their government, often on highly individualized matters.” 45
By showing a preference for a particular religion in “a place where in-
dividuals come to interact with, and participate in, the institutions and
processes of their government,” 46 the town violated “the First Amend-
ment’s promise that every citizen, irrespective of her religion, owns an
equal share in her government.” 47 This situation, Justice Kagan
(^37) Town of Greece , 134 S. Ct. at 1835 – 37 (Thomas, J., concurring in part and concurring in the
judgment). Justice Thomas has stated this position previously in, for example, Van Orden v. Per- ry , 545 U.S. 677 , 692 – 93 ( 2005 ) (Thomas, J., concurring); and Elk Grove Unified School District v. Newdow , 542 U.S. 1 , 50 – 51 ( 2004 ) (Thomas, J., concurring in the judgment). (^38) Town of Greece , 134 S. Ct. at 1838 (Thomas, J., concurring in part and concurring in the
judgment). (^39) Id. at 1838 – 39 (Breyer, J., dissenting) (quoting id. at 1825 (majority opinion)) (internal quo-
tation marks omitted). (^40) Id. at 1841 (quoting Van Orden , 545 U.S. at 700 (Breyer, J., concurring in the judgment))
(internal quotation mark omitted). (^41) Id. Among the facts Justice Breyer found to be relevant were: the prayers being predomi-
nantly Christian despite the presence of other faith groups within the town’s borders; the town making no significant effort to invite non-Christian prayer-givers or to publicize its policy that anybody who wished to lead a prayer could do so; the nature of the town board meetings, which were not purely legislative as in Marsh but which also involved participation by members of the public; and the town making no effort to provide guidelines to prayer-givers, as the U.S. House of Representatives does. See id. at 1839 – 41. (^42) Justice Kagan was joined by Justices Ginsburg, Breyer, and Sotomayor. (^43) Town of Greece , 134 S. Ct. at 1841 , 1849 (Kagan, J., dissenting). (^44) Id. at 1842. (^45) Id. at 1845. (^46) Id. at 1844. (^47) Id. at 1842.
2014 ] THE SUPREME COURT — LEADING CASES 197
uncertainty. For one, the Court again declined to expressly reject the
Lemon test; in fact, the majority opinion did not even mention the test
and Justice Breyer’s dissent mentioned the case itself only once in
passing. 53 While Justice Kennedy’s opinion might be read as folding
history into his general coercion test, 54 it also seemed to invoke the rea-
sonable observer test as part of the coercion analysis.^55 Either way, the
section of Justice Kennedy’s opinion on coercion did not receive support
from a majority of the Court. In her dissent, Justice Kagan agreed with
Marsh ’s reliance on the history of legislative prayer^56 but did not explicit-
ly engage with either the reasonable observer approach or the coercion
test; instead, she introduced what is debatably an entirely new participa-
tory democracy perspective.^57 Thus, while all the Justices seem to agree
that history likely plays some role in Establishment Clause interpretation,
Greece leaves uncertain the status and relevance of the previous doctrinal
tests, as well as exactly how history fits into those approaches.
Still, although Greece may provide no more doctrinal clarity, the
opinions reveal two fundamentally distinct understandings among
the Justices of what the Constitution permits or requires the govern-
ment to do to accommodate religious pluralism in the public sphere.
The Justices’ differing views on the Constitution’s treatment of diver-
(^53) See Town of Greece , 134 S. Ct. at 1841 (Breyer, J., dissenting). (^54) See id. at 1825 (opinion of Kennedy, J.). Justice Kennedy has previously sought to charac-
terize the historical inquiry in Marsh as relevant to general Establishment Clause challenges, not just to special cases like Marsh. County of Allegheny , 492 U.S. at 670 (Kennedy, J., concurring in the judgment in part and dissenting in part) (“ Marsh stands for the proposition, not that specific practices common in 1791 are an exception to the otherwise broad sweep of the Establishment Clause, but rather that the meaning of the Clause is to be determined by reference to historical practices and understandings.”). Justice Kennedy’s belief in the importance of history for Estab- lishment Clause interpretation is not new to the Court. See, e.g. , Everson v. Bd. of Educ., 330 U.S. 1 , 33 ( 1947 ) (Rutledge, J., dissenting) (“No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.”). However, a historical approach to Establishment Clause interpretation has not been without criti- cism. See generally, e.g. , Steven K. Green, “Bad History”: The Lure of History in Establishment Clause Adjudication , 81 N OTRE DAME L. R EV. 1717 ( 2006 ) (discussing the unreliability and ma- nipulability of history as an analytical tool in Establishment Clause analysis). (^55) See Town of Greece , 134 S. Ct. at 1825 (opinion of Kennedy, J.). (^56) Justice Kagan agreed with the majority opinion that Marsh was correct in identifying a long
history of legislative prayer in this country, and that the sole question in the instant case was whether Greece ’s prayer practice fell within that tradition. Id. at 1845 (Kagan, J., dissenting) (ex- pressing agreement with the majority’s historical exposition, id. at 1819 (majority opinion)). It is surprising that although three Justices dissented in Marsh in 1983 , all nine Justices today agree that legislative prayer, at least in some form, can be compatible with the Establishment Clause. In particular, it is puzzling that Justice Kagan embraced Marsh ’s reliance on history when an em- phasis on history may lead to a more majority-favoring and prayer-tolerant clause. See Gerard V. Bradley, The Supreme Court on Prayer , W ITHERSPOON^ I^ NST.^ :^ P^ UBLIC^ D^ ISCOURSE^ (May^29 , 2014 ) , http://www.thepublicdiscourse.com/ 2014 / 05 / 13238 [http://perma.cc/Q 98 W- 7 TKX] (suggest- ing that a historical approach could “buttress[]” a number of practices that may not survive other Establishment Clause tests). (^57) See Town of Greece , 134 S. Ct. at 1842 (Kagan, J., dissenting).
198 HARVARD LAW REVIEW [Vol. 128 : 191
sity lead in opposite directions: to either a minority-protective or a
majority-favoring Establishment Clause.
In Justice Kagan’s view, the Establishment Clause not only permits
but also requires the government to protect minority believers, such as
by allowing within the public sphere only those forms of religious ex-
pression that everyone — or at least most people — will find acceptable.
To her, the Establishment Clause is a minority-protective device that pre-
scribes an active governmental role in preventing exclusion of minorities.
The clause’s purpose is to prevent the “religiously based divisiveness”
that results from marginalization of minority faiths.^58 As a result, the Es-
tablishment Clause requires that when government sponsors legislative
prayer, it must accommodate minorities by ensuring either that prayers
are generic and nonsectarian or that clergy of many faiths are invited. 59
But in Justice Kennedy’s view, the Constitution does not require
the government to take such steps to ensure inclusivity, and may even
prohibit such involvement. As long as the government adheres to a
“policy of nondiscrimination,”^60 it can allow people to fully express
their religious beliefs in the public sphere, even if the result is that the
majority faiths predominate. 61 In fact, it might even be largely im-
permissible for government to attempt to control the content of such
religious expression — in Justice Kennedy’s view, the Establishment
Clause is concerned less with minorities feeling marginalized and more
with the backlash that might result when longstanding traditions are
threatened by government efforts to promote inclusivity. 62 While mi-
norities are presumed to understand expressions of the majority reli-
gion as part of the prevailing culture of the society in which they live,
not as an attempt to coerce their adherence to the majority faith, 63
government efforts to affirmatively promote a balance of religious
(^58) Id. at 1853 (quoting Van Orden v. Perry, 545 U.S. 677 , 704 ( 2005 ) (Breyer, J., concurring in
the judgment)) (internal quotation mark omitted). (^59) See id. at 1851. (^60) Id. at 1824 (majority opinion). (^61) See RICHARD H. FALLON , JR ., THE DYNAMIC C ONSTITUTION 99 ( 2 d ed. 2013 ) (explaining
how a “weak” reading of the Establishment Clause combines with the Court’s “weak” Free Exer- cise Clause doctrine to “well serve[] the interests of those with mainstream religious beliefs”). (^62) See Town of Greece , 134 S. Ct. 1819 (“A test that would sweep away what has so long been
settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.”); see also Van Orden , 545 U.S. at 704 (Breyer, J., con- curring in the judgment) (“[Striking down the display of the Ten Commandments] might well en- courage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”); N OAH F ELDMAN , DIVIDED BY G OD 243 ( 2006 ). (^63) See Town of Greece , 134 S. Ct. at 1825 (opinion of Kennedy, J.); see also F ELDMAN , supra
note 62 , at 239 – 40 (arguing that symbolic invocations of a majority religion merely reflect that religion’s majority status and that, with regard to atheists or those of minority faiths, “it is largely an interpretative choice to feel excluded,” id. at 242 ).
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This difference in the way the Justices view the government’s role
in accommodating religious pluralism may extend beyond the confines
of the Establishment Clause to questions about how the Constitution
envisions the government’s role in accommodating diversity in other
contexts. Justice Kennedy’s views on religious diversity in Greece echo
a common refrain in the Court’s race-based affirmative action and
campaign finance cases that government may not actively seek to
promote diversity in those contexts by balancing voices. 70 Meanwhile,
Justice Kagan’s sensitivity to the minority population of Greece paral-
lels the dissenting Justices’ views in those cases: that the Constitution
permits more active governmental involvement in accommodating mi-
nority members of the diverse polity. 71 Perhaps, then, Greece fails to
clarify the doctrinal muddle of the Establishment Clause because, at
its core, it reflects broader divides among the Justices over how the Con-
stitution envisions the government’s role in accommodating diversity in
other contexts, such as race-based affirmative action and political speech.
Although it remains unclear what specific doctrinal test the Court
might use in its next Establishment Clause case, the opinions in Greece
are illuminating in the way that they display opposing perspectives on
the underlying question of what the government may or must do to
accommodate religious diversity. In that respect, Greece may be much
more helpful than its doctrinal muddle might suggest: more important
than knowing which test to apply is understanding the central animat-
ing questions that inform them. Greece does not clarify the language
the Justices will use in the future to resolve an Establishment Clause
controversy — but the contours of the underlying debate have become
a little clearer.
(^70) Justice Kennedy’s distrust in Greece of “religious balancing” may allude to the “racial bal-
ancing” that has been found impermissible in the school affirmative action context. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 , 551 U.S. 701 , 729 – 30 ( 2007 ) (plurality opinion). Likewise, Justice Kennedy’s suspicion of government involvement in favor of minority voices re- flects some Justices’ fears that the government’s attempts to “level[] the playing field” in campaign financing, Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 , 2825 – 26 ( 2011 ), may lead to government having the power “to silence entities whose voices the Govern- ment deems to be suspect,” Citizens United v. FEC, 130 S. Ct. 876 , 898 ( 2010 ). (^71) Justice Kagan’s view echoes the dissenting Justices’ support for an affirmative role for race-
based government action “that seek[s], not to keep the races apart, but to bring them together,” Parents Involved , 551 U.S. at 835 (Breyer, J., dissenting), as well as the dissenting Justices’ sup- port for a campaign finance system in which the government takes an affirmative role in “promot[ing] the values underlying both the First Amendment and our entire Constitution by en- hancing the ‘opportunity for free political discussion to the end that government may be respon- sive to the will of the people,’” Ariz. Free Enter. Club , 131 S. Ct. at 2830 (Kagan, J., dissenting) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254 , 269 ( 1964 )).
