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 Breyer, dissenting.

     As we all recognize, this is a “fact-sensitive” case. Ante, at 19 (opinion of Kennedy, J.); see also post, at 20 (Kagan, J., dissenting); 681 F. 3d 20, 34 (CA2 2012) (explaining that the Court of Appeals’ holding follows from the “totality of the circumstances”). The Court of Appeals did not believe that the Constitution forbids legislative prayers that incorporate content associated with a particular denomination. Id., at 28. Rather, the court’s holding took that content into account simply because it indicated that the town had not followed a sufficiently inclusive “prayer-giver selection process.” Id., at 30. It also took into account related “actions (and inactions) of prayer-givers and town officials.” Ibid. Those actions and inactions included (1) a selection process that led to the selection of “clergy almost exclusively from places of worship located within the town’s borders,” despite the likelihood that significant numbers of town residents were members of congregations that gather just outside those borders; (2) a failure to “infor[m] members of the general public that volunteers” would be acceptable prayer givers; and (3) a failure to “infor[m] prayer-givers that invocations were not to be exploited as an effort to convert others to the partic-ular faith of the invocational speaker, nor to disparageany faith or belief different than that of the invoca-tional speaker.” Id., at 31–32 (internal quotation marks omitted).

     The Court of Appeals further emphasized what it was not holding. It did not hold that “the town may not open its public meetings with a prayer,” or that “any prayers offered in this context must be blandly ‘nonsectarian.’ ” Id., at 33. In essence, the Court of Appeals merely held that the town must do more than it had previously done to try to make its prayer practices inclusive of other faiths. And it did not prescribe a single constitutionally required method for doing so.

     In my view, the Court of Appeals’ conclusion and its reasoning are convincing. Justice Kagan’s dissent is consistent with that view, and I join it. I also here emphasize several factors that I believe underlie the conclusion that, on the particular facts of this case, the town’s prayer practice violated the Establishment Clause.

     First, Greece is a predominantly Christian town, but it is not exclusively so. A map of the town’s houses of worship introduced in the District Court shows many Christian churches within the town’s limits. It also shows a Buddhist temple within the town and several Jewish synagogues just outside its borders, in the adjacent city of Rochester, New York. Id., at 24. Yet during the more than 120 monthly meetings at which prayers were delivered during the record period (from 1999 to 2010), only four prayers were delivered by non-Christians. And all of these occurred in 2008, shortly after the plaintiffs began complaining about the town’s Christian prayer practice and nearly a decade after that practice had commenced. See post, at 14, 21.

     To be precise: During 2008, two prayers were delivered by a Jewish layman, one by the chairman of a Baha’i congregation, and one by a Wiccan priestess. The Jewish and Wiccan prayer givers were invited only after they reached out to the town to inquire about giving an invoca-tion. The town apparently invited the Baha’i chairman on its own initiative. The inclusivity of the 2008 meetings, which contrasts starkly with the exclusively single-denomination prayers every year before and after, is commendable. But the Court of Appeals reasonably de-cided not to give controlling weight to that inclusivity, for it arose only in response to the complaints that presaged this litigation, and it did not continue into the following years.

     Second,      the town made no significant effort to inform the area’s non-Christian houses of worship about the possibility of delivering an opening prayer. See post, at 21. Beginning in 1999, when it instituted its practice of opening its monthly board meetings with prayer, Greece selected prayer givers as follows: Initially, the town’s employees invited clergy from each religious organization listed in a “Community Guide” published by the Greece Chamber of Commerce. After that, the town kept a list of clergy who had accepted invitations and reinvited those clergy to give prayers at future meetings. From time to time, the town supplemented this list in response to requests from citizens and to new additions to the Community Guide and a town newspaper called the Greece Post.

     The plaintiffs do not argue that the town intentionally discriminated against non-Christians when choosing whom to invite, 681 F. 3d, at 26, and the town claims, plausibly, that it would have allowed anyone who asked to give an invocation to do so. Rather, the evident reasons why the town consistently chose Christian prayer givers are that the Buddhist and Jewish temples mentioned above were not listed in the Community Guide or the Greece Post and that the town limited its list of clergy almost exclusively to representatives of houses of worship situated within Greece’s town limits (again, the Buddhist temple on the map was within those limits, but the synagogues were just outside them). Id., at 24, 31.

     Third, in this context, the fact that nearly all of the prayers given reflected a single denomination takes on significance. That significance would have been the same had all the prayers been Jewish, or Hindu, or Buddhist, or of any other denomination. The significance is that, in a context where religious minorities exist and where more could easily have been done to include their participation, the town chose to do nothing. It could, for example, have posted its policy of permitting anyone to give an invocation on its website, greeceny.gov, which provides dates and times of upcoming town board meetings along with minutes of prior meetings. It could have announced inclusive policies at the beginning of its board meetings, just before introducing the month’s prayer giver. It could have provided information to those houses of worship of all faiths that lie just outside its borders and include citizens of Greece among their members. Given that the town could easily have made these or similar efforts but chose not to, the fact that all of the prayers (aside from the 2008 outliers) were given by adherents of a single religion reflects a lack of effort to include others. And that is what I take to be a major point of Justice Kagan’s related discussion. See post, at 2–4, 9, 14–15, 21–23.

     Fourth, the fact that the board meeting audience included citizens with business to conduct also contributes to the importance of making more of an effort to include members of other denominations. It does not, however, automatically change the nature of the meeting from one where an opening prayer is permissible under the Establishment Clause to one where it is not. Cf. post, at 8–14, 16–17, 20.

     Fifth, it is not normally government’s place to rewrite, to parse, or to critique the language of particular prayers. And it is always possible that members of one religious group will find that prayers of other groups (or perhaps even a moment of silence) are not compatible with their faith. Despite this risk, the Constitution does not forbid opening prayers. But neither does the Constitution forbid efforts to explain to those who give the prayers the nature of the occasion and the audience.

     The U. S. House of Representatives, for example, provides its guest chaplains with the following guidelines, which are designed to encourage the sorts of prayer that are consistent with the purpose of an invocation for a government body in a religiously pluralistic Nation:

“The guest chaplain should keep in mind that the House of Representatives is comprised of Members of many different faith traditions.

“The length of the prayer should not exceed 150 words.

“The prayer must be free from personal political views or partisan politics, from sectarian controversies, and from any intimations pertaining to foreign or domestic policy.” App. to Brief for Respondents 2a.

The town made no effort to promote a similarly inclusive prayer practice here. See post, at 21–22.

     As both the Court and Justice Kagan point out, we are a Nation of many religions. Ante, at 10–11; post, at 1–2, 18. And the Constitution’s Religion Clauses seek to “protec[t] the Nation’s social fabric from religious conflict.” Zelman v. Simmons-Harris, 536 U. S. 639, 717 (2002) (Breyer, J., dissenting). The question in this case is whether the prayer practice of the town of Greece, by doing too little to reflect the religious diversity of its citizens, did too much, even if unintentionally, to promote the “political division along religious lines” that “was one of the principal evils against which the First Amendment was intended to protect.” Lemon v. Kurtzman, 403 U. S. 602, 622 (1971) .

     In seeking an answer to that fact-sensitive question, “I see no test-related substitute for the exercise of legal judgment.” Van Orden v. Perry, 545 U. S. 677, 700 (2005) (Breyer, J., concurring in judgment). Having applied my legal judgment to the relevant facts, I conclude, like Justice Kagan, that the town of Greece failed to make reasonable efforts to include prayer givers of minority faiths, with the result that, although it is a community of several faiths, its prayer givers were almost exclusively persons of a single faith. Under these circumstances, I would affirm the judgment of the Court of Appeals that Greece’s prayer practice violated the Establishment Clause.

     I dissent from the Court’s decision to the contrary.

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