The Supreme Court’s Answer: Local Governments Can Begin with Prayer, Too.

In Town of Greece v. Galloway, the Supreme Court held in a 5:4 opinion that the practice of opening the monthly town board meeting in prayer did not violate the First Amendment. The practice had gone on for over a decade, and included a brief prayer led mainly by Christian ministers (the town was predominantly Christian citizenry). After some complained about the lack of diversity, the town attempted to find speakers of other faiths to lead the invocation. Although critics argued the town did not do enough, it was successful at arranging for several other faiths to be represented.

Justice Kennedy, writing for the majority, began by reaffirming that legislative prayer has traditionally been an approved practice under the First Amendment. The challengers argued, however, that the prayer practice in the town of Greece fell outside traditionally accepted prayer for two reasons. First, the prayers that were given were sectarian, such as those given in Jesus’ name. The prayers would only be permissible, the challengers argued, if they referred only to “God” in a generic sense, or used other “inclusive” language. Second, the challengers also argued that prayers before town board meetings are fundamentally different than prayers before national or state legislatures. The setting and conduct of the town board meetings created social pressures for the citizen attendees that coerces participation in the religious practice of prayer in a way that was not present for larger legislative bodies.

Ultimately, the majority rejected these arguments. The Court noted that the prayers need not be non-sectarian or only generically reference religious concepts. Requiring such a prerequisite would further entangle government with religion, by forcing government to be a censor of religious speech: “Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be non-sectarian.”¹ The Court cautioned, however, that a practice that was ultimately exploited to “proselytize or advance any one, or to disparage any other, faith or belief” would be a different case entirely

As to the second point, though the Court recognized that the government may not coerce its citizens to support or participate in any religion or its exercise, it was not persuaded that that prayer practice in the town of Greece compelled engagement in religious observance. Because of the tradition of legislative prayer and the way it was carried out in the town, there was no concern of coercion among adults who could simply choose not to participate.

After the Town of Greece case, invocation prior to opening a local government session is permissible if a few principles are followed.

• Prayer need not be non-sectarian, meaning it can reference a specific religion’s beliefs, as long as the prayer is not disparaging to other faiths or engaging in overt proselytizing.

• The opportunity to give an invocation should not be limited to only one faith tradition, and certainly, must not intentionally exclude minority religions from participation.

• Best practice for a municipality wishing to institute such a practice, or ensure its current practice conforms, is to proactively solicit a diverse group of speakers.

¹Town of Greece v. Galloway, ___ U.S. ___, 134 S. Ct. 1811, 1822-23 (2014)