Town of Greece v. Galloway: Legislative Prayer Analysis

Introduction: Comparing Town Meetings to Legislative Sessions in Marsh

The central question in this first issue is whether the majority opinion by Justice Kennedy or Justice Kagan's dissent more accurately characterizes the town meetings as being similar to or dissimilar from the legislative sessions addressed in Marsh v. Chambers.

In his opinion, Justice Kennedy takes the position that a town hall meeting is essentially similar to a legislative session, but fails to adequately account for the fact that legislative sessions, while open to the public, exist for the very specific purpose of legislators engaging in the work of legislation. Any prayer offered in that context is offered for the benefit of the legislators themselves — individuals who, at least theoretically, come to the table with the same level of power as their fellow legislators, and who act as representatives of the people rather than in a personal capacity. There appears to be a meaningful difference between that type of meeting and a town hall meeting, which does not focus solely on the business of establishing legislation.

Justice Kagan differentiates the town hall from the legislative meeting described in Marsh. In her view, "The town hall here is a kind of hybrid. [The] Board indeed has legislative functions, as Congress and state assemblies do, and that means some opening prayers are allowed there. But much as in my hypotheticals, the Board's meetings are also occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters."

In other words, many of the participants or observers at the town hall were in the position of petitioning members of the board, which could have caused them to feel compelled to participate in prayer — a situation with significant First Amendment implications. The fact that these prayers were drawn exclusively from a Christian background may therefore have created an element of coercion. According to Kagan, the setup of the town hall "calls for Board members to exercise special care to ensure that the prayers offered are inclusive, that they respect each and every member of the community as an equal citizen. But the Board, and the clergy members it selected, made no such effort."

Justice Kagan's description of the ways in which the town hall differs from the legislative session described in Marsh rests on the differential impact each type of meeting has on citizens, which makes the First Amendment arguments all the more salient. An elected representative might be expected to speak out even if he or she believed the government was attempting to silence them, but that same burden should not be placed on ordinary citizens.

Conclusion: Justice Kagan's dissent more accurately characterizes the town meetings as being dissimilar from the legislative sessions in Marsh because she describes the potential chilling effect on citizens — an impact that Kennedy ignores in his majority opinion.

The second issue asks whether county commission meetings are more likely to be viewed by courts as similar to the legislative sessions in Marsh or to the town meetings in Town of Greece v. Galloway.

Because the majority in Town of Greece characterized the town meetings as closely resembling the legislative sessions in Marsh, this question is a difficult one to answer. The majority did not perceive any significant differences between the two types of meetings. Furthermore, it appears that the majority would not have found meaningful differences absent clear evidence that attendees were experiencing overt discrimination as a result of the prayers. According to Kennedy, "The analysis would be different if town board members 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."

As a result, the majority of the Court appears to see no significant distinction between the meeting in Marsh and the meetings in Town of Greece, and, by extension, county commission meetings would likely be viewed as similar to both.

However, in their dissents, Justices Kagan and Breyer argue that the town meetings in Town of Greece differ from the legislative sessions in Marsh precisely because citizens frequently appear before town meetings as advocates or petitioners. Viewed in that context, county commission meetings — which often include public hearings and citizen testimony — are more analogous to the town meetings in Town of Greece than to the purely legislative sessions in Marsh. The inclusion of testimony and advocacy takes such meetings outside the strictly legislative realm.

County Commission Meetings and the Marsh-Greece Spectrum

Conclusion: County commission meetings are more likely to be viewed by courts as similar to the town meetings in Town of Greece than to the legislative sessions in Marsh. However, given the majority's opinion in Town of Greece, this distinction is unlikely to affect whether the practice implicates the First Amendment.

Issue three calls for an analysis of Justice Breyer's and Justice Kagan's criticisms of both the manner in which the town invited persons to pray and the content of the prayers themselves.

Both Justice Breyer and Justice Kagan expressed concern that the prayers were aligned with a single specific religion. That religion was Christianity, but both justices made clear that they would find an exclusive focus on any single religion troubling. After describing a series of analogous hypothetical scenarios, Justice Kagan observed that "one glaring problem is that the government in all these hypotheticals has aligned itself with, and placed its imprimatur on, a particular religious creed."

The town invited only clergy from within its own borders, despite knowing that the town contained only Christian clergy and that not all residents were Christian. Justice Breyer emphasized that the problem was not simply that all of the prayers were Christian, but 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."

The predominantly Christian character of the prayers was particularly troubling to Justice Kagan, who noted that the town made no effort to include faiths other than Christianity. As she wrote, "The practice at issue here differs from the one sustained in Marsh because Greece's town meetings involve participation by ordinary citizens, and the invocations given directly to those citizens were predominantly sectarian in content. Still more, Greece's Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought to involve, accommodate, or in any way reach out to adherents of non-Christian religions."

Justice Breyer's dissent further demonstrated that this omission had a real-world impact on residents of the town. He noted that Town of 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."

The failure to invite clergy from these other religious communities to participate in the meetings illustrated the kind of exclusion underlying the petitioners' claims that the town meetings were effectively endorsing a single religion. Kagan concluded that the majority had ignored the obvious, writing that "no one can fairly read the prayers from Greece's Town meetings as anything other than explicitly Christian, constantly and exclusively so. From the time Greece established its prayer practice in 1999 until litigation loomed nine years later, all of its monthly chaplains were Christian clergy."

Conclusion

Id.

Id.

Id.

Id., concurring opinion by Justice Alito.