This is a transcript of the podcast featuring BJC General Counsel Holly Hollman and Staff Counsel Nan Futrell discussing the issues involved in the prayer practice at the center of the case of Town of Greece v. Galloway. Click here to listen to the podcast.
NAN FUTRELL: Welcome to the Baptist Joint Committee podcast. I’m Nan Futrell, BJC staff counsel, and I’m here with our general counsel, Holly Hollman, to talk a little bit about a Supreme Court case, Town of Greece v. Galloway, in which the BJC recently filed an amicus brief and which will be argued before the Supreme Court on November 6.
HOLLY HOLLMAN: Thank you, Nan. This is an important religious liberty case and the BJC opposes the Greece town council’s prayer practice. Our brief defends freedom of conscience, and it emphasizes the significance of voluntary prayer. It makes clear our view that it is not the role of government to engage citizens in prayer or lead religious exercises. You know, the opportunity to interact with and influence elected officials on civic matters should not be compromised by government-led prayer.
NAN FUTRELL: The case comes out of Greece, N.Y., a suburb of Rochester, and involves the Greece Town Board’s practice of opening its monthly public meetings with prayers offered by volunteer local clergy selected and invited at the town’s sole discretion. Over a period of about 10 years, about two-thirds of the resulting prayers were specifically Christian. For example, in one striking instance, a Catholic priest led the assembled citizens in reciting the Lord’s Prayer. Like most local government public meetings, the Greece board meetings are the primary forum in which the citizens interact directly with their elected officials. Often, citizens may actually be required to attend, for example, to request a zoning permit from the board or to offer public comment on important issues related to town governance. Because the prayers occur at the beginning of meetings, the result is that citizens who need to attend for other reasons must first sit through these prayers in which they’re often asked explicitly to join. Several years ago, two citizens challenged the prayer practice as a violation of the First Amendment’s Establishment Clause. They are represented by our colleagues, Americans United for Separation of Church and State, and were successful in the U.S. Court of Appeals for the 2nd Circuit, which held that, based on all of the facts and circumstances surrounding the town’s practice; it had impermissibly affiliated itself with Christianity. The town then sought Supreme Court review of that ruling and that was granted to them by the Supreme Court. So, Holly, you’ve followed these cases for many years. Can you give us some background on the legal precedent that will inform the court’s review?
HOLLY HOLLMAN: Yes, that’s a great summary, Nan, of the factual things at issue in this case, and of course the big question is, whether that government practice is allowed or whether it violates the religion clauses of the First Amendment. The Baptist Joint Committee follows cases dealing with the constitutional separation of church and state and we’ve been following cases about legislative prayer for many, many years. Usually by the time a case gets to the Supreme Court, we know a lot about it and we’re ready to file an amicus brief to represent the historic position of Baptists to defend religious liberty for all. It should be obvious why these facts create a problem. Prayer at official government meetings clearly mixes the work of government and the work of religion, and as we often say, even where that practice might be held constitutional, it is always controversial. You know, we don’t all pray in the same way; we don’t all pray, and having a religious practice integrated into a government meeting is going to cause some problems.
The First Amendment protects religious liberty for all in two distinct ways. Of course, it protects the free exercise of religion–making sure that we all get to pray and we can pray communally in our houses of worship as we choose. But, the government also has a duty to prevent establishments of religion. The religion clauses ensure that the government itself is not involved in advancing religion. It protects against the government picking one religion over the other or sort of tying our rights of citizenship with our religious rights.
So, both clauses are important to protect our religious freedom, and – in this case – the question is whether or not this particular practice violates the Establishment Clause.
So, while I said it might be obvious that prayer at a government meeting is a problem under the religion clauses, why would a case like this occur? Well, as many people who follow our work and care very much about religious liberty know, there are many different tests that the court uses to interpret the Establishment Clause. There’s the endorsement test. There are versions of a coercion test; they’re all different ways the court gives meaning to the no-Establishment Clause. Well, there’s an important case from 1983 called Marsh v. Chambers which didn’t apply one of the well-known tests to evaluate the Establishment Clause challenge there, but instead, sort of created an exception. In that case, someone challenged a practice in the Nebraska Legislature where they employed a chaplain to minister to its members as they perform their duties, and the chaplain opened the legislative sessions in prayer. The court in Marsh v. Chambers, instead of applying some other test, looked at the practice and said, you know, it was very similar to the historic practice that Congress uses and that has a tradition – the historians don’t exactly agree on what that tradition is – but a long-standing tradition where legislators had asked for guidance to pray for them as they do the government’s work. So, looking at that historic practice, the Court upheld the Nebraska Legislature’s prayer by the chaplain when the state legislature opens.
So in this case, Town of Greece v. Galloway, the Court is being asked whether or not their practice is okay under Marsh v. Chambers or whether it violates the Establishment Clause. So, a major issue in this case is whether the facts in Greece are similar enough to the facts in Marsh to give them protection under that sort of exception to the traditional Establishment Clause rules that prevent government from advancing religion.
Nan, when we worked on this brief, you know, that was one of the things that we really were focused on was what are the differences, I mean, if Marsh creates an exception, surely that exception needs to be narrowly construed and not expanded to drive some big truck through Establishment Clause jurisprudence to allow government to advance religion. Why don’t you talk about some of the distinctions that we mention in our brief, and really, the contribution that we try to make to this case?
NAN FUTRELL: Sure, so the BJC’s amicus brief makes three main points that we felt and feel are really important for the Court to take into consideration as it deliberates.
First, our brief details the strong historical support for freedom of conscience that ultimately culminated and is embodied in the Establishment Clause, from both the Founding Fathers, like James Madison and Thomas Jefferson, and also, our Baptist forebears, like Roger Williams, who believed that genuine faith must be arrived at voluntarily and never compelled by civil authorities.
Secondly, the brief demonstrates the singular, wholly unique context of the congressional chaplaincy, which Holly talked a little bit about. Legislative prayers in this setting, in state legislatures and in the U.S. Congress, are offered by a chaplain who was selected by the legislators and who pray for the legislators themselves and their important work rather than individual citizens. Prayers in Congress are also non-sectarian. They reflect the religious makeup of the legislative body whose behalf they are praying on. Also, legislators don’t have to be present, even, when the chaplain offers his prayers at the beginning of their legislative session. So, citizens at local government meetings, by contrast (as in Greece), have no say in selecting the chaplain who then purports to pray on their behalf and, unlike in Congress, there’s no longstanding historical tradition of prayers at the local government meetings, which was really the central, almost exclusive, basis for the holding in Marsh, which, as Holly pointed out, even that is kind of controversial in Congress.
Finally, our brief notes even Marsh placed clear limits on prayers in that unique context of legislative chaplaincy. The Court said that such prayers could not, consistent with the First Amendment, be exploited to proselytize or advance any one, or to disparage any other, faith or belief. So, there’s no support for the argument that Marsh upheld unbounded, limitless legislative prayer, much less government-led, communal prayer at the local level.
HOLLY HOLLMAN: Those are some really important distinctions when you look closely at this idea of legislative prayer to note that the Court, in upholding that practice in Nebraska, did so in a really specific context, like you say there. As I mentioned earlier, the Court has lots of different tests and ways of deciding Establishment Clause cases, but one thing that they most often say is that context matters, and so I think our brief really does a good job trying to place Marsh in the proper context; and if the Court looks at the context in Marsh very carefully, we are hopeful that they will not expand it in a way that is so at odds with other core First Amendment values–values like protecting the voluntary nature of religion, and protecting against government coercion of religious practice or government infringement on rights of conscience.
Basically, the plaintiffs in this case had to have their consciences violated, to be pressured to participate in a religious act, in order to be active and involved in their local government, and surely that is something that the Establishment Clause prevents. In this case, the plaintiffs are really trying to show the Court how this practice in this setting is inherently coercive. The participatory nature of local government and the specific language used in the prayers together really create an environment and a situation where their rights of citizenship really are sacrificed by their unwillingness to go along with the prayer practice of the majority.
So, I think it’s a really important case, and the Baptist Joint Committee is making a distinct contribution with our understanding of Marsh and our understanding that the government should not be involved in worship practices like prayer. It doesn’t mean that that government is hostile to religion – there are many ways that religion is protected. And one way that religion is protected is by leaving to the private sphere these decisions about how and when to worship, how and when to pray. And, there are many ways that government acknowledges religion that have been upheld by the courts – such as the motto, or “under God” in the pledge – but, this is something entirely different; this is really a practice of prayer of communal worship — something that people get to make their own choices about in joining congregations to pray the way that they want to, the way that they feel led, and really, in a way, it is something that they should not be asked to do by their government officials.
The BJC was delighted to have the United Church of Christ and the Stated Clerk of the Presbyterian Church (U.S.A.) join with us. There are many Christian traditions that believe that religious liberty is fundamental to their ability to practice religion as they see fit and they understand, like the BJC does, that the government should not infringe on rights of conscience, and that religion must be freely exercised and that government should not usurp that role of religion by leading citizens in prayer.
NAN FUTRELL: One issue that’s crucial is, is the nature of the forum in which the prayers in Greece are taking place. One argument that the Court should reject is the idea that the prayer-givers in Greece and other local meetings are speaking as private individuals who have a free speech right to say, you know, whatever they want specific to their religion, even if it is something like the Lord’s Prayer. But, it’s important to keep in mind, they are speaking as the town, they speak for the town. Their speech is the town’s speech — the town has chosen the speaker, they have invited them according to their own kind of internal process, and they’ve delegated their podium to a clergy member who speaks to the audience from up on the dais where the board is sitting behind them. So, you know, it’s important to keep in mind that they’re public speakers speaking on behalf of the town; it’s just as though a board member were delivering those prayers.
HOLLY HOLLMAN: It’s really important, because those who will see this case as somehow against prayer are just willfully not looking at the setting. Individuals have rights to pray according to their own conscience in lots of different arenas, but no one has the right to use a government forum to promote their particular religion and to lead the citizens in prayer.
While the Baptist Joint Committee and the others who joined in this amicus effort, we feel very strongly that government-sponsored prayer is not allowed, is not helpful, does not protect religious freedom. You know, there are people on the other side who take a different position, and they are generally claiming that the government should allow prayer in this government forum. Some of them even assert that they have a right to pray according to their conscience in Jesus’ name, in the ways that we see that this record shows, in quite specific ways, using a government forum. Now I think that that is upside-down – that that is a real mistaken view of how the religion clauses protect religious liberty in America. And the funny thing is, as you read more and more of these briefs, you see the difficult lengths people have to go to in order to justify the position that they can pray at an official government meeting … when it seems that there are many alternatives, such as, of course, interfaith gatherings outside of a government meeting. There are lots of different ways that people can naturally choose to pray together, or, you know, as I always like to think, most houses of worship are open to the public, so if we’re curious about how our neighbor prays, most of us could walk in our neighbor’s church. Of course, there’s something else going on here, where they really want to have some experience in their government forum, and — for that — we have always had a pretty consistent answer.
NAN FUTRELL: That’s right, and one thing, you know, the BJC has long championed is the moment of silence as … a satisfactory alternative to this problem, as a great way to solemnize the important work of government while leaving that opportunity to the individual to decide, whether to pray according to their own conscience and their own religious tradition, or not to pray. So it seems like sort of … everybody’s happy; everybody wins with the moment of silence.
HOLLY HOLLMAN: So this will be a really interesting case when it gets to the Court for oral argument. I think it’s been well briefed; the parties have presented their case very well in their writings. They both have substantial support from amicus groups participating on either side, and there are some really tough questions before the Court. I think the best outcome would be if the Court does clarify and narrow Marsh–really make sure that Marsh is seen in its proper context. And, if they do that, I think that the factual differences are significant enough that this prayer practice should fail, and it’s hard for me to see how, in any sort of local government where there is that participatory nature of citizens to their government officials, that prayer is appropriate, that it would not be coercive. It’s very hard to see that, and of course that’s the position that the respondents are taking – the original plaintiffs in this case – as they challenge their town practice.
You know the town is taking a different position, not only is Marsh much broader than I think it is, but that the Establishment Clause is much weaker and really would allow much more government involvement in religion and, you know, if you’re an outsider, if you’re a minority, so be it. I think that that’s a dangerous perspective, one that is not in keeping with our best and most important traditions, and so I hope it is one the Court will reject.
NAN FUTRELL: So Holly, do you think that the Court is likely to use this case as an opportunity to change how it interprets the Establishment Clause?
HOLLY HOLLMAN: You know, this Court hasn’t looked at this issue for three decades, and – in the interim – we’ve seen this Court continue to struggle with “What does the Establishment Clause mean.” We’ve had all of these different tests. Now the Court has struck down prayer practices in the graduation prayer case, Lee v. Weisman, later in Santa Fe v. Doe, where they held that you could not have a prayer practice at a public school football game. So, the real question here is, will the Court continue to see that prayer is a very important religious practice that involves conscience, and that the government really shouldn’t be involved in that business, and make sure that all citizens are protected and not influenced and pressured to participate. In those other cases, of course, we’re talking about public school kids, and so some people say, “Oh that’s just to protect kids,” but you know, the Establishment Clause also should protect the consciences of adults. In this kind of basic religious worship practice, there’s a real question about whether and how the government can be involved in that without violating liberty of conscience.
It’s unfortunate when people think that not praying in a government forum is somehow an attack on their religion; in fact it’s the opposite. The fact that government is limited in the role it plays in religion protects religious liberty, allows people to pray according to their own conscience.
You know, in this case, there were some pretty ugly episodes where people prayed specifically in what sounded like, in a way, to reprimand the plaintiffs for challenging them. And I think that that just shows the problem when you try to mix the power of the government with your religious devotion and what can be really harmful both to conscience, but also, to religion itself.
We understand that people are very passionate about their religious beliefs and their religious practices, and that’s why it’s really important that everyone’s religious rights are protected and that no one is forced into religious practice. I’m hopeful that this case will be decided in a way that reaffirms the important way that the religion clauses protect religious freedom and that cut down on the kind of divisiveness, the kind of anger and the kind of problematic fighting over religion that this kind of case provokes.
NAN FUTRELL: With that, we’ll conclude our conversation for today. If you are interested in learning more about this case, or you would like to take a look at the BJCs brief, please visit our website: BJConline.org. Again, the Supreme Court will hear oral arguments on November 6, so stay tuned, and thanks so much for joining us.