In Galloway v. Town of Greece (New York), the Second Circuit held that the town’s practice of legislative prayer “impermissibly affiliated the town with a single creed, Christianity.”
The Court granted the Town’s peitition for writ of certiorari, and the Solicitor General has just filed the United States Government’s brief supporting the Town.
At issue is an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature’s employment of a chaplain to lead a legislative prayer. The majority opinion, authored by Chief Justice Burger, was seemingly not worried that the same chaplain had been employed for almost two decades, and relied upon the historical practice of legislative prayer, applying Lemon v. Kurtzman.
The Second Circuit in Town of Greece, however, looked at the content of the prayers and essentially found, as we phrased it here, “one invocation to Athena out of 130 is simply not sufficient” to meet the requirement of non-endorsement given that two-thirds of the prayers contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.”
The Solicitor General’s brief, however, argues that the court should not consider the content of the prayers. The government argues:
Under the principles announced in Marsh, which relied heavily on the history of legislative prayer in thiscountry, a prayer practice that is not problematic in the ways identified in Marsh (as petitioner’s practice concededly is not) does not amount to an unconstitutionalestablishment of religion merely because most prayer-givers are Christian and many or most of their prayerscontain sectarian references. The unbroken history ofthe offering of prayer in Congress, for example, hasincluded a large majority of Christian prayer-givers anda substantial number of prayers with identifiably sectarian references. Neither federal courts nor legislativebodies are well suited to police the content of such prayers, and this Court has consistently disapproved of government interference in dictating the substance of prayers.
Taken to its logical conclusion, the government’s position here would disable the judiciary from considering the content of any prayer, including one that was vigorously and even violently sectarian.
RR
[image of Athena, via]