Published June 5, 2014



           Last month, in the case of Town of Greece v. Galloway, the United States Supreme Court extended its precedent permitting a ceremonial prayer at the beginning of a legislative session to a local government town council meeting.  Although that case concerned a municipal governing board and the justices provided varying opinions to support their action in a 5-4 decision, the logic of all the opinions suggests that no different result would likely apply to school board meetings.

           The Town of Greece, New York, since 1999 opened its monthly board meeting with a prayer given by volunteer clergy selected from the congregations listed in a local directory.  While the program was open to all denominations, all participating clergy for eight years were Christian.  Town officials did not review the prayer in advance and provided no guidance as to tone or content.

            In 1983, in the case of Marsh v. Chambers, the Supreme Court held that, based on the long-standing tradition and practice first established by the same first Congress which wrote the First Amendment’s prohibition against government establishment of religion, a ceremonial prayer at the beginning of a state legislative session does not offend that provision of the Constitution.  While some lower courts have attempted to limit the Marsh precedent to the federal and state legislatures, all nine of the justices in Galloway apparently viewed Marsh as applicable to some degree to the town council in this case.

            What divided the Court here was whether the Town of Greece’s practice conformed closely enough to a permissible ceremonial invocation.  The dissenters, like the Court of Appeals, believed that the town officials’ longtime practice of selecting only Christian clergy violated the Constitution.  Further, they pointed to the greater community involvement inherent in local government meetings and, based on that, found fault in highly sectarian prayers addressed not just to the council members but to the community members in attendance.

            But the majority held that permissible invocations need not be nonsectarian or inoffensive to all possible listeners.  “Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.”  Still, the Court articulated the following standard:

“The relevant constraint derives from its place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage.  Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function.  If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort.  That circumstance would present a different case than the one presently before the Court.”

            In sum, where a school board wishes to add solemnity to its meetings through a religious invocation, it would best be advised to rotate in a nondiscriminatory fashion those invited to present it and to request that their prayer address the board members in the manner suggested by the Court.

            Should you have any questions, please contact one of our attorneys at our Flossmoor Office at 708-799-6766.

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