If a City Council’s Invocation Prayers Are Almost All Christian, Is It Illegal? The Supreme Court Will Soon Decide

Just over a year ago, I was celebrating a major court victory that put a stop to virtually non-stop Christian prayers at the city council meetings in Greece, New York. Now, that decision is back up in the air.

Here’s the story (pretty much as I wrote it then): The town of Greece, New York had opened board meetings with prayers since 1999 thanks to Town Supervisor John Auberger. While the invocations could be delivered by representatives of many different faiths, virtually all of the representatives were Christian. They still are (PDF):

In 2008, two residents of the town, Susan Galloway and Linda Stephens, spoke out against this practice. It worked! Non-Christians delivered the invocation at four out of the next twelve meetings. Then, assuming the women were satisfied, the City Council went back to almost-entirely Christian prayers.

Between 1999 and 2010, there were approximately 130 invocations and it appeared that all but four had been delivered by Christians.

Initially, a district court dismissed Galloway and Stephens’ case, saying that the fact that representatives from different denominations were invited to deliver the prayers meant that the town wasn’t pushing Christianity on its citizens.

But last year, the U.S. Court of Appeals for the Second Circuit reversed that ruling (PDF). Victory!

In practice, Christian clergy members have delivered nearly all of the prayers relevant to this litigation, and have done so at the town’s invitation. From 1999 through 2007, every prayer-giver who gave the invocation met this description. In 2008, after Galloway and Stephens had begun complaining to the town about its prayer practice, nonChristians delivered the prayer at four of the twelve Town Board meetings. A Wiccan priestess and the chairman of the local Baha’i congregation each delivered one of these prayers, and a lay Jewish man delivered the remaining two. The town invited the Wiccan priestess and the lay Jewish man after they inquired about delivering prayers; it appears that the town invited the Baha’i chairman without receiving such an inquiry. However, between January 2009 and June 2010, when the record closed, all the prayer-givers were once again invited Christian clergy.

We conclude, on the record before us, that the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint. This conclusion is supported by several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials. We emphasize that, in reaching this conclusion, we do not rely on any single aspect of the town’s prayer practice, but rather on the totality of the circumstances present in this case.

The town’s process for selecting prayer-givers virtually ensured a Christian viewpoint. Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice, and nearly all of the prayers thereafter. In the town’s view, the preponderance of Christian clergy was the result of a random selection process.

So that’s where we stood last May. It was obvious that the town of Greece was promoting Christianity at their meetings. It was illegal. It should have been the end of the story. Of course, the (Christian) Alliance Defense Fund was going to appeal the ruling, but that had a snowball’s chance in hell of happening, right?

As we found out yesterday, snowballs exist in hell.

The Supreme Court granted certiorari (PDF) to the case, meaning they will hear the arguments and decide whether to accept the Court of Appeals’ ruling or overturn it:

As the SCOTUS Blog notes, the issue at hand here is:

Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

Or, in other words, even though there wasn’t outright discrimination at work here — it’s not like they said only Christians could deliver the invocations — did the City Council still violate the Constitution?

If the Supreme Court rules in favor of the City Council, Christian prayers are going to be heard at city councils around the country. One of the reasons they don’t happen everywhere now is precisely because the local governments don’t want to open the door to atheists and Muslims and Wiccans and other non-Christians.

Americans United for Separation of Church and State is, of course, urging the court to uphold the Court of Appeals’ ruling (they defended Galloway and Stephens):

A town council meeting isn’t a church service, and it shouldn’t seem like one,” said the Rev. Barry W. Lynn, executive director of Americans United. “Government can’t serve everyone in the community when it endorses one faith over others. That sends the clear message that some are second-class citizens based on what they believe about religion.”

Not in question here is whether the invocations should be allowed in the first place. In general, the courts have ruled that non-sectarian invocations are permissible (see Marsh v. Chambers). But non-sectarian means not just Christian, and the town of Greece has clearly violated that ideal. I would hope Christian groups join our side, too. Not that it matters how many groups are on our side, but it would make very clear that this is not a case of Atheists versus Christians. This is a case between those of us who think the government ought to stay neutral with respect to religion versus those who think the Christian majority should be able to get special privileges because of their faith.

It seems likely that the conservative bloc (Justices Roberts, Alito, Thomas, Scalia) will support the Christian prayers. But which way will swing justice Anthony Kennedy vote? Think Progress took a stab at that one:

Kennedy has held that “government may not coerce anyone to support or participate in religion or its exercise,” but it is not clear that he would forbid much else under the Constitution’s ban on government establishment of religion. By the end of the next Supreme Court term, however, it is very likely that his views will carry the day.

So… they don’t really know either. The Establishment Clause is up in the air and we have no idea where it’ll land. That should freak all of us out.

Here’s the upside to all of this: This is one of those cases that unites our community without exception — virtually all of the atheist and church/state separation groups will submit amicus briefs when the time comes; a few may sit out, but no one will oppose this. None of the groups want to see a government that promotes atheism. We want the government to leave decisions about faith to private citizens and we don’t want local city councils deciding that their official religion is Christianity, even in practice if not in policy.

About Hemant Mehta

Hemant Mehta is the editor of Friendly Atheist, appears on the Atheist Voice channel on YouTube, and co-hosts the uniquely-named Friendly Atheist Podcast. You can read much more about him here.

  • Daniel Krull

    [shameless plug] (The fantastic) Linda Stephens is a member of the Atheist Community of Rochester (NY), a group accessible through Meetup.com
    [/shameless plug]

  • Bill Santagata

    They will probably rule that the Town of Greece’s prayer policy is not out of line with Marsh v. Chambers as they did invite some non-Christians to develop prayers and their policy was that anybody could volunteer to give a prayer (the 2nd Circuit took issue with the fact that this policy was unstated).

    I would expect a reversal of the 2nd Circuit but nothing that drastically shifts the paradigm of Marsh v. Chambers.

  • Stev84

    I can tell you what they will say: “ceremonial deism”

  • Guest

    The Town of Greece has long been the joke of educated Rochester. Lots of small-minded, bigoted mouthbreeders living with statues of Mary inside bathtubs on their lawns. Can’t wait ’til this latest inappropriate, unconstitutional folly gets shut down once and for all. Go pray in your church, or your family room, or in a freaking rowboat on Lake Ontario, for all I care. Keep your religion to yourself.

  • http://twitter.com/ThyGoddess Michelle

    ” Non-Christians delivered the invocation at four out of the next twelve meetings. ”

    Okay… I get the inclusion thing they tried, but isn’t that still bad? I don’t feel represented by invocations of any sort. What would be an invocation that includes everyone, including atheists? “Hey myself, hi there, I hope I have judgement today”?

    Just ask for it to be totally ditched off the menu.

  • BobaFuct

    I was just going to say the same thing….why the hell do we need an invocation for a regularly scheduled public meeting? Just call the meeting to order and get on with it.

    Also, calling it a “prayer” makes the intent pretty obvious. Just setting aside time for prayer, of any kind, is showing preference for “religion” over “not religion”, even if it’s supposedly non-sectarian.

  • Gus Snarp

    If it’s going to go on, then I would want the opportunity to stand up and give my invocation: “Hello, my name is Gus and I’m an atheist. Now get to work.”

  • Reginald Selkirk

    There’s nothing wrong with brathing through your mouth. Sometimes it is medically necessary.

  • Stev84

    I had a deviated septum that made it difficult to breath through the nose. But I got that fixed. One of the best things I ever did.

  • http://www.dougberger.net Doug B.

    Wonder if the city of Moore Oklahoma had invocations before their meetings?

  • eric

    Yeah, its clealy deism when only 126 out of 130 prayers mention Jesus.

  • eric

    Using the time to actually conduct business is one good option. Another is “let’s take a moment to recognize and thank the people who helped the town in the latest [bad event of significance].”
    But let’s face it, they probably won’t end the practice if some small percent of meetings were to start with a postive message from an atheist. They’d just hold their noses and call it worth it. What’s needed to end the practice is a volunteer who shows up in a black robe and opens the meeting with “Hail, Satan…” I bet it would only take one instance of that for the town to decide to end the practice.

  • Gus Snarp

    Or one mention of Allah.

  • Willy Occam

    It’s like these nuts can’t stand not to have their religion permeate every little corner of their entire existence, even if it imposes on others or is completely irrelevant to the situation. It’s not enough that you talk to your imaginary friend before every meal, when you go to sleep at night, when you wake up in the morning, when you’re running late for work, when you’re cheering on your favorite sports team, when you have a sick family member, or any other time you need a favor… you seriously can’t go for an entire hour at a town council meeting without talking to him?

    Sheesh, how insecure….

  • Christopher Borum

    He said mouthbreeders. So apparently the old joke, “turn back, it’s only a blow job” no longer holds.

  • A3Kr0n

    This is on topic/off topic. I got an FFRF alert about a church that wants to put up a table next to the kiosks in the Pheasant Branch Conservancy in Middleton, WI, and the FFRF wants to stop it. I’m not sure how I feel about that. It’s not like officiating a prayer before of government activity, so I was wondering how others feel about letting a church have a table there?

  • http://twitter.com/ThyGoddess Michelle

    Well, mentions of citizens’s accomplishments and recognitions are part of any good council meeting. It’s not an invocation and shouldn’t count as a countermeasure to invocations.

    One guy goes hoogahboogah we cast down God’s good winky eye, and another thanks someone for charity work? One of them made a difference. The other is babbling nonsense.

  • Rwlawoffice

    I’m glad the Supreme Court is hearing this. The 2nd circuit opinion was clearly mistaken in that it viewed the content of the prayers not the policy for selecting who would give them. This was against precedent and actually entangled the state in religion more than a policy that simply opens the time to all comers.

  • http://www.groverbeachbum.blogspot.com/ Neil

    Could go either way, really. I think most of it depends on how seriously the court takes their “all are welcome” policy. Such compromises have been made before, I believe. Personally, i think there is still a problem with government promoting religion vs, non-religion, even if it IS representative of the population. Even if atheists are welcome to offer an invocation, that still doesn’t solve the issue for me.

    I think a bit of good old fashioned guerilla activism and mockery could solve a lot of these problems, though. Some local people should get together and put in for some prayer slots. Then we could have a moment of silence to kneel before Zod, and a passionate prayer to Cthulu to eat the good citizens of Greece first! They can put up with that, or directly and openly defy the constitution. Caught between a mock and a hard place.

  • http://www.groverbeachbum.blogspot.com/ Neil

    I don’t agree that a court checking facts is an “entanglement in religion”. The court might have a need to check those facts to decide if there has already been excessive entanglement in religion. That’s like saying referees shouldn’t watch replay videos because it might bias their calls.

    What if there has been a behind-the-scenes policy to unfairly weed out perceived “undesirable” speakers? How could we know without looking at the evidence, which in this case happens to include the content of the invocations?

  • Rwlawoffice

    I don’t agree that looking at the content of the invocations is necessary to determine the facts of the cities policy. I would contend that if the city policy is to include looking at the invocation content then the policy would then be more religious based because the city would need to then conduct a review to determine if the invocation was too religious or not. The evidence before the court is the policy not the content.

  • TCC

    This sounds like a great argument to say that the policy shouldn’t be permitted, since it would require the state to evaluate the content of the prayers.

  • TCC

    What precedent, exactly?

  • baal

    Oh look. RW is zealously trying his side of the case is public again. Would that he instead quit being an attorney at large for the christians get to rule the country club and cared more for what the constitution demands.

    RW, they did not take all comers. They stacked the deck full of spades and were the, shocked, socked I tell you that the ‘random’ pull was….wait for it….a spade!!! It doesn’t take 2 brain cells to figure out how to put up a similarly biased lottery in front of every town council meeting and guarantee pure unadulterated christian prayer from the government all across this land.

  • roberta

    My feeling is that unless any publicly funded place has attained the status of church or temple of worship, then the christian prayer should not be included.