Ruling in Town of Greece

by Ed Whelan

By a vote of 5-4, the Supreme Court has ruled that the town of Greece, New York, has not violated the Establishment Clause by opening its monthly board meeting with a prayer. 

Here’s a very quick summary (which, of course, is no substitute for reading the opinions):

Justice Kennedy’s lead opinion is in part a majority opinion: Joined by the Chief Justice, Scalia, Thomas, and Alito, Kennedy inquires whether the town of Greece’s prayer practice “fits within the tradition long followed in Congress and the state legislatures.” He rejects the claim that legislative prayer must be “nonsectarian or ecumenical.” (Slip op. at 9-17.) He also rejects the claim that the town violated the Establishment Clause “by inviting a predominantly Christian set of ministers to lead the prayer”; rather than try to achieve “religious balancing”—which could present entanglement problems—the town satisfies the Establishment Clause by “maintain[ing] a policy of nondiscrimination.” (Slip op. at 17-18.)

Joined only by the Chief and Alito, Kennedy further concludes that the town’s practice does not coerce participation by non-adherents. (Slip op. at 18-23.) Thomas, joined by Scalia, applies a different test to find no coercion. (The divide between Kennedy and Thomas on coercion reflects the divide between Kennedy and Scalia in the 1992 case of Lee v. Weisman.)

The principal dissent (25 pages) is by Justice Kagan. (Breyer, who joins Kagan’s dissent, also writes his own short dissent.) Kagan states that she agrees with the Court’s 1983 legislative-prayer decision in Marsh v. Chambers, but that she believes that the town of Greece’s practices fall outside the scope of that ruling for several reasons: the town’s meetings “involve participation by ordinary citizens”; “the invocations given—directly to those citizens—were predominantly sectarian in content”; and the town board “did nothing to recognize religious diversity.”

Justice Alito, in a separate concurrence joined by Scalia, responds directly to Kagan’s dissent. He argues (powerfully, I think) that, on the one hand, her dissent “is really quite niggling” as it “would demand no more than a small modification” in the town’s procedures, but that, on the other hand, the “logical thrust of many of [Kagan’s] arguments is that prayer is never permissible prior to meetings of local government legislative bodies.”  

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