Town of Greece v. Galloway,
572 U.S. ___ (2014)

Annotate this Case

SUPREME COURT OF THE UNITED STATES

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No. 12–696

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TOWN OF GREECE, NEW YORK, PETITIONER v.SUSAN GALLOWAY et al.

on writ of certiorari to the united states court of appeals for the second circuit

[May 5, 2014]

     Justice Alito, with whom Justice Scalia joins,concurring.

     I write separately to respond to the principal dissent, which really consists of two very different but intertwined opinions. One is quite narrow; the other is sweeping. I will address both.

I

     First, however, since the principal dissent accuses the Court of being blind to the facts of this case, post, at 20 (opinion of Kagan, J.), I recount facts that I find particularly salient.

     The town of Greece is a municipality in upstate New York that borders the city of Rochester. The town decided to emulate a practice long established in Congress and state legislatures by having a brief prayer before sessions of the town board. The task of lining up clergy members willing to provide such a prayer was given to the town’s office of constituent services. 732 F. Supp. 2d 195, 197–198 (WDNY 2010). For the first four years of the practice, a clerical employee in the office would randomly call religious organizations listed in the Greece “Community Guide,” a local directory published by the Greece Chamber of Commerce, until she was able to find somebody willing to give the invocation. Id., at 198. This employee eventu-ally began keeping a list of individuals who had agreed to give the invocation, and when a second clerical employee took over the task of finding prayer-givers, the first employee gave that list to the second. Id., at 198, 199. The second employee then randomly called organizations on that list—and possibly others in the Community Guide—until she found someone who agreed to provide the prayer. Id., at 199.

     Apparently, all the houses of worship listed in the local Community Guide were Christian churches. Id., at 198–200, 203. That is unsurprising given the small number of non-Christians in the area. Although statistics for the town of Greece alone do not seem to be available, statistics have been compiled for Monroe County, which includes both the town of Greece and the city of Rochester. According to these statistics, of the county residents who have a religious affiliation, about 3% are Jewish, and for other non-Christian faiths, the percentages are smaller.[1] There are no synagogues within the borders of the town of Greece, id., at 203, but there are several not far away across the Rochester border. Presumably, Jewish residents of the town worship at one or more of those synagogues, but because these synagogues fall outside the town’s borders, they were not listed in the town’s local directory, and the responsible town employee did not include them on her list. Ibid. Nor did she include any other non-Christian house of worship. Id., at 198–200.[2]

     As a result of this procedure, for some time all the prayers at the beginning of town board meetings were offered by Christian clergy, and many of these prayers were distinctively Christian. But respondents do not claim that the list was attributable to religious bias or favoritism, and the Court of Appeals acknowledged that the town had “no religious animus.” 681 F. 3d 20, 32 (CA2 2012).

     For some time, the town’s practice does not appear to have elicited any criticism, but when complaints were received, the town made it clear that it would permit any interested residents, including nonbelievers, to provide an invocation, and the town has never refused a request to offer an invocation. Id., at 23, 25; 732 F. Supp. 2d, at 197. The most recent list in the record of persons available to provide an invocation includes representatives of many non-Christian faiths. App. in No. 10–3635 (CA2), pp. A1053–A1055 (hereinafter CA2 App.).

     Meetings of the Greece Town Board appear to have been similar to most other town council meetings across the country. The prayer took place at the beginning of the meetings. The board then conducted what might be termed the “legislative” portion of its agenda, during which residents were permitted to address the board. After this portion of the meeting, a separate stage of the meetings was devoted to such matters as formal requests for variances. See Brief for Respondents 5–6; CA2 App. A929–A930; e.g., CA2 App. A1058, A1060.

     No prayer occurred before this second part of the proceedings, and therefore I do not understand this case to involve the constitutionality of a prayer prior to what may be characterized as an adjudicatory proceeding. The prayer preceded only the portion of the town board meeting that I view as essentially legislative. While it is true that the matters considered by the board during this initial part of the meeting might involve very specific questions, such as the installation of a traffic light or stop sign at a particular intersection, that does not transform the nature of this part of the meeting.

II

     I turn now to the narrow aspect of the principal dissent, and what we find here is that the principal dissent’s objection, in the end, is really quite niggling. According to the principal dissent, the town could have avoided any constitutional problem in either of two ways.

A

     First, the principal dissent writes, “[i]f the Town Board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint.” Post, at 18–19. “Priests and ministers, rabbis and imams,” the principal dissent continues, “give such invocations all the time” without any great difficulty. Post, at 19.

     Both Houses of Congress now advise guest chaplains that they should keep in mind that they are addressing members from a variety of faith traditions, and as a matter of policy, this advice has much to recommend it. But any argument that nonsectarian prayer is constitutionally required runs headlong into a long history of contrary congressional practice. From the beginning, as the Court notes, many Christian prayers were offered in the House and Senate, see ante, at 7, and when rabbis and other non-Christian clergy have served as guest chaplains, their prayers have often been couched in terms particular to their faith traditions.[3]

     Not only is there no historical support for the proposition that only generic prayer is allowed, but as our country has become more diverse, composing a prayer that is acceptable to all members of the community who hold religious beliefs has become harder and harder. It was one thing to compose a prayer that is acceptable to both Christians and Jews; it is much harder to compose a prayer that is also acceptable to followers of Eastern religions that are now well represented in this country. Many local clergy may find the project daunting, if not impossible, and some may feel that they cannot in good faith deliver such a vague prayer.

     In addition, if a town attempts to go beyond simply recommending that a guest chaplain deliver a prayer that is broadly acceptable to all members of a particular community (and the groups represented in different communities will vary), the town will inevitably encounter sensitive problems. Must a town screen and, if necessary, edit prayers before they are given? If prescreening is not required, must the town review prayers after they are delivered in order to determine if they were sufficiently generic? And if a guest chaplain crosses the line, what must the town do? Must the chaplain be corrected on the spot? Must the town strike this chaplain (and perhaps his or her house of worship) from the approved list?

B

     If a town wants to avoid the problems associated with this first option, the principal dissent argues, it has another choice: It may “invit[e] clergy of many faiths.” Post, at 19. “When one month a clergy member refers to Jesus, and the next to Allah or Jehovah,” the principal dissent explains, “the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed.” Ibid.

     If, as the principal dissent appears to concede, such a rotating system would obviate any constitutional problems, then despite all its high rhetoric, the principal dissent’s quarrel with the town of Greece really boils down to this: The town’s clerical employees did a bad job in compiling the list of potential guest chaplains. For that is really the only difference between what the town did and what the principal dissent is willing to accept. The Greece clerical employee drew up her list using the town directory instead of a directory covering the entire greater Rochester area. If the task of putting together the list had been handled in a more sophisticated way, the employee in charge would have realized that the town’s Jewish residents attended synagogues on the Rochester side of the border and would have added one or more synagogues to the list. But the mistake was at worst careless, and it was not done with a discriminatory intent. (I would view this case very differently if the omission of these synagogues were intentional.)

     The informal, imprecise way in which the town lined up guest chaplains is typical of the way in which many things are done in small and medium-sized units of local government. In such places, the members of the governing body almost always have day jobs that occupy much of their time. The town almost never has a legal office and instead relies for legal advice on a local attorney whose practice is likely to center on such things as land-use regulation, contracts, and torts. When a municipality like the town of Greece seeks in good faith to emulate the congressional practice on which our holding in Marsh v. Chambers, 463 U. S. 783 (1983), was largely based, that municipality should not be held to have violated the Constitution sim-ply because its method of recruiting guest chaplains lacks the demographic exactitude that might be regarded as optimal.

     The effect of requiring such exactitude would be to pressure towns to forswear altogether the practice of having a prayer before meetings of the town council. Many local officials, puzzled by our often puzzling Establishment Clause jurisprudence and terrified of the legal fees that may result from a lawsuit claiming a constitutional violation, already think that the safest course is to ensure that local government is a religion-free zone. Indeed, the Court of Appeals’ opinion in this case advised towns that constitutional difficulties “may well prompt municipalities to pause and think carefully before adopting legislative prayer.” 681 F. 3d, at 34. But if, as precedent and historic practice make clear (and the principal dissent concedes), prayer before a legislative session is not inherently inconsistent with the First Amendment, then a unit of local government should not be held to have violated the First Amendment simply because its procedure for lining up guest chaplains does not comply in all respects with what might be termed a “best practices” standard.

III

     While the principal dissent, in the end, would demand no more than a small modification in the procedure that the town of Greece initially followed, much of the rhetoric in that opinion sweeps more broadly. Indeed, the logical thrust of many of its arguments is that prayer is never permissible prior to meetings of local government legislative bodies. At Greece Town Board meetings, the principal dissent pointedly notes, ordinary citizens (and even children!) are often present. Post, at 10–11. The guest chaplains stand in front of the room facing the public. “[T]he setting is intimate,” and ordinary citizens are permitted to speak and to ask the board to address problems that have a direct effect on their lives. Post, at 11. The meetings are “occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters.” Post, at 9. Before a session of this sort, the principal dissent argues, any prayer that is not acceptable to all in attendance is out of bounds.

     The features of Greece meetings that the principal dissent highlights are by no means unusual.[4] It is common for residents to attend such meetings, either to speak on matters on the agenda or to request that the town address other issues that are important to them. Nor is there anything unusual about the occasional attendance of students, and when a prayer is given at the beginning of such a meeting, I expect that the chaplain generally stands at the front of the room and faces the public. To do otherwise would probably be seen by many as rude. Fi-nally, although the principal dissent, post, at 13, attaches importance to the fact that guest chaplains in the town of Greece often began with the words “Let us pray,” that is also commonplace and for many clergy, I suspect, almost reflexive.[5] In short, I see nothing out of the ordinary about any of the features that the principal dissent notes. Therefore, if prayer is not allowed at meetings with those characteristics, local government legislative bodies, unlike their national and state counterparts, cannot begin their meetings with a prayer. I see no sound basis for drawing such a distinction.

IV

     The principal dissent claims to accept the Court’s decision in Marsh v. Chambers, which upheld the constitutionality of the Nebraska Legislature’s practice of prayer at the beginning of legislative sessions, but the principal dissent’s acceptance of Marsh appears to be predicated on the view that the prayer at issue in that case was little more than a formality to which the legislators paid scant attention. The principal dissent describes this scene: A session of the state legislature begins with or without most members present; a strictly nonsectarian prayer is recited while some legislators remain seated; and few members of the public are exposed to the experience. Post, at 8–9. This sort of perfunctory and hidden-away prayer, the principal dissent implies, is all that Marsh and the First Amendment can tolerate.

     It is questionable whether the principal dissent accurately describes the Nebraska practice at issue in Marsh,[6] but what is important is not so much what happened in Nebraska in the years prior to Marsh, but what happened before congressional sessions during the period leading up to the adoption of the First Amendment. By that time, prayer before legislative sessions already had an impressive pedigree, and it is important to recall that history and the events that led to the adoption of the practice.

     The principal dissent paints a picture of “morning in Nebraska” circa 1983, see post, at 9, but it is more instructive to consider “morning in Philadelphia,” September 1774. The First Continental Congress convened in Philadelphia, and the need for the 13 colonies to unite was imperative. But “[m]any things set colony apart from colony,” and prominent among these sources of division was religion.[7] “Purely as a practical matter,” however, the project of bringing the colonies together required that these divisions be overcome.[8]

     Samuel Adams sought to bridge these differences by prodding a fellow Massachusetts delegate to move to open the session with a prayer.[9] As John Adams later recounted, this motion was opposed on the ground that the dele-gates were “so divided in religious sentiments, some Episcopalians, some Quakers, some Anabaptists, somePresbyterians, and some Congregationalists, that [they] could not join in the same act of worship.”[10] In response, Samuel Adams proclaimed that “he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the same time a friend to his country.”[11] Putting aside his personal prejudices,[12] he moved to invite a local Anglican minister, Jacob Duché, to lead the first prayer.[13]

     The following morning, Duché appeared in full “pontifi-cals” and delivered both the Anglican prayers for the day and an extemporaneous prayer.[14] For many of the delegates—members of religious groups that had come to America to escape persecution in Britain—listening to a distinctively Anglican prayer by a minister of the Church of England represented an act of notable ecumenism. But Duché’s prayer met with wide approval—John Adams wrote that it “filled the bosom of every man” in attendance[15]—and the practice was continued. This first congressional prayer was emphatically Christian, and it was neither an empty formality nor strictly nondenominational.[16] But one of its purposes, and presumably one of itseffects, was not to divide, but to unite.

     It is no wonder, then, that the practice of beginning congressional sessions with a prayer was continued after the Revolution ended and the new Constitution was adopted. One of the first actions taken by the new Congress when it convened in 1789 was to appoint chaplains for both Houses. The first Senate chaplain, an Episcopa-lian, was appointed on April 25, 1789, and the first House chaplain, a Presbyterian, was appointed on May 1.[17] Three days later, Madison announced that he planned to introduce proposed constitutional amendments to protect individual rights; on June 8, 1789, those amendments were introduced; and on September 26, 1789, the amendments were approved to be sent to the States for ratification.[18] In the years since the adoption of the First Amendment, the practice of prayer before sessions of the House and Senate has continued, and opening prayers from a great variety of faith traditions have been offered.      This Court has often noted that actions taken by the First Congress are presumptively consistent with the Bill of Rights, see, e.g., Harmelin v. Michigan, 501 U. S. 957, 980 (1991) , Carroll v. United States, 267 U. S. 132 –152 (1925), and this principle has special force when it comes to the interpretation of the Establishment Clause. This Court has always purported to base its Establishment Clause decisions on the original meaning of that provision. Thus, in Marsh, when the Court was called upon to decide whether prayer prior to sessions of a state legislature was consistent with the Establishment Clause, we relied heavily on the history of prayer before sessions of Congress and held that a state legislature may follow a similar practice. See 463 U. S., at 786–792.

     There can be little doubt that the decision in Marsh reflected the original understanding of the First Amendment. It is virtually inconceivable that the First Congress, having appointed chaplains whose responsibilities prominently included the delivery of prayers at the beginning of each daily session, thought that this practice was inconsistent with the Establishment Clause. And since this practice was well established and undoubtedly well known, it seems equally clear that the state legislatures that ratified the First Amendment had the same understanding. In the case before us, the Court of Appeals appeared to base its decision on one of the Establishment Clause “tests” set out in the opinions of this Court, see 681 F. 3d, at 26, 30, but if there is any inconsistency between any of those tests and the historic practice of legislative prayer, the inconsistency calls into question the validity of the test, not the historic practice.

V

     This brings me to my final point. I am troubled by the message that some readers may take from the principal dissent’s rhetoric and its highly imaginative hypotheticals. For example, the principal dissent conjures up the image of a litigant awaiting trial who is asked by the presiding judge to rise for a Christian prayer, of an official at a polling place who conveys the expectation that citizens wishing to vote make the sign of the cross before casting their ballots, and of an immigrant seeking naturalization who is asked to bow her head and recite a Christianprayer. Although I do not suggest that the implication is intentional, I am concerned that at least some readers will take these hypotheticals as a warning that this is where today’s decision leads—to a country in which religious minorities are denied the equal benefits of citizenship.

     Nothing could be further from the truth. All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.

Notes

1  See Assn. of Statisticians of Am. Religious Bodies, C. Grammich et al., 2010 U. S. Religion Census: Religious Congregations & Membership Study 400–401 (2012).
2  It appears that there is one non-Christian house of worship, a Buddhist temple, within the town’s borders, but it was not listed in the town directory. 732 F. Supp. 2d, at 203. Although located within the town’s borders, the temple has a Rochester mailing address. And while the respondents “each lived in the Town more than thirty years, neither was personally familiar with any mosques, synagogues, temples, or other non-Christian places of worship within the Town.” ., at 197.
3  For example, when a rabbi first delivered a prayer at a session of the House of Representatives in 1860, he appeared “in full rabbinic dress, ‘piously bedecked in a white tallit and a large velvet skullcap,’ ” and his prayer “invoked several uniquely Jewish themes and repeated the Biblical priestly blessing in Hebrew.” See Brief for Nathan Lewin as 9.Many other rabbis have given distinctively Jewish prayers, ., at 10, and n. 3, and distinctively Islamic, Buddhist, and Hindu prayers have also been delivered, see , at 10–11.
4  See, ., prayer practice of Saginaw City Council in Michigan, described in Letter from Freedom from Religion Foundation to City Manager, Saginaw City Council (Jan. 31, 2014), online at http://media.mlive.com / saginawnews_impact  / other  / Saginaw % 20prayer%20at%20meetings%20letter.pdf (all Internet materials as visited May 2, 2014, and available in Clerk of Court’s case file); prayer practice of Cobb County commissions in Georgia, described in v. 410 F. Supp. 2d 1324 (ND Ga. 2006).
5  For example, at the most recent Presidential inauguration, a minister faced the assembly of onlookers on the National Mall and began with those very words. 159 Cong. Rec. S183, S186 (Jan. 22, 2013).
6  See generally Brief for Robert E. Palmer as (Ne-braska Legislature chaplain at issue in ); , , at 11 (describing his prayers as routinely referring “to Christ, the Bible, [and] holy days”). See also v. , 504 F. Supp. 585, 590, n. 12 (Neb. 1980) (“A rule of the Nebraska Legislature requires that ‘every member shall be present within the Legislative Chamber during the meetings of the Legislature . . . unless excused . . . .’ Unless the excuse for nonattendance is deemed sufficient by the legislature, the ‘presence of any member may be compelled, if necessary, by sending the Sergeant at Arms’ ” (alterations in original)).
7  G. Wills, Inventing America: Jefferson’s Declaration of Independence 46 (1978).
8  N. Cousins, In God We Trust: The Religious Beliefs and Ideas of the American Founding Fathers 4–5, 13 (1958).
9  M. Puls, Samuel Adams: Father of the American Revolution 160 (2006).
10  Letter to Abigail Adams (Sept. 16, 1774), in C. Adams, Familiar Letters of John Adams and His Wife Abigail Adams, During the Revolution 37 (1876).
11  
12  See G. Wills, , at 46; J. Miller, Sam Adams 85, 87 (1936); I. Stoll, Samuel Adams: A Life 7, 134–135 (2008).
13  C. Adams, , at 37.
14  
15  ; see W. Wells, 2 The Life and Public Services of SamuelAdams 222–223 (1865); J. Miller, at 320; E. Burnett, The Continental Congress 40 (1941); M. Puls, , at 161.
16  First Prayer of the Continental Congress, 1774, online at http://chaplain.house.gov/archive/continental.html.
17  1 Annals of Cong. 24–25 (1789); R. Cord, Separation of Church and State: Historical Fact and Current Fiction 23 (1982).
18  1 Annals of Cong. 247, 424; R. Labunski, James Madison and the Struggle for the Bill of Rights 240–241 (2006).
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