Public School Systems and Religion:
Where do things stand after
Greece v. Galloway?
NC Association of Community College Trustees
Leadership Conference
September 4th, 2014
David E. Inabinett
Brinkley Walser, PLLC
PO Box 1657, Lexington, NC 27293
dinabinett@brinkleywalser.com
Research and Materials
• I would like to specifically thank Fredrick
Johnson of Faw, Folder & Johnson, P.C. and
Carolyn Waller of Tharrigton Smith, L.L.P. for
research and materials they provided.
The Establishment Clause
“Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof….”
U.S. Constitution, Amendment I
What does The Establishment Clause mean? When
does government activity breach the wall of
separation between Church and State?
ENGEL v. VITALE
370 U.S. 421 (1962)
• Court overturns New York State requirement for
daily classroom invocation “Almighty God we
acknowledge our dependence upon Thee, and we
beg Thy blessings upon us, our parents, our
teachers and our Country.”
• “It is no part of the business of government to
impose official prayers for any group of the
American people to recite as a part of a religious
program carried on by government.”
LEMON v. KURTZMAN
403 U.S. 602 (1971)
• Court held unconstitutional Rhode Island and
Pennsylvania statutes providing state aid to churchrelated elementary and secondary schools.
• Formulated “three-prong test” – “First, the statute
must have a secular legislative purpose; Second, its
principal or primary effect must be one that neither
advances nor inhibits religion; Finally, the statute
must not foster ‘an excessive government
entanglement with religion.’ “
LEE v. WEISMAN
505 U.S. 577 (1992)
• Whether the school district’s practice of inviting clergy to give
a non-sectarian invocation and benediction at graduation
violates the Establishment Clause.
• Establishes coercement “coercment test” – “At a minimum,
the Constitution guarantees that government may not coerce
anyone to support or participate in religion or its exercise, or
otherwise act in a way which establishes a State religion or a
religious faith or intends to do so.” “The undeniable fact is
that the school district’s supervision and control of a high
school graduation ceremony places public pressure, as well as
peer pressure, on attending students to stand as a group or ,
at least, maintain respectful silence during the invocation and
benediction.”
• “Our decisions in Engel v. Vitale, 370 U.S. 421
(1962), and Abington School District, supra,
recognize, among other things, that prayer exercises
in public schools carry a particular risk of indirect
coercion. The concern may not be limited to the
context of schools, but it is most pronounced
there.”
• “We do not address whether that choice is
acceptable if the affected citizens are mature
adults, but we think the State may not, consistent
with the Establishment Clause, place primary and
secondary school children in this position.”
TANFORD v. BRAND
104 F.3d 982 (7th Cir. 1997)
• Challenge to non-sectarian invocation and benediction at Indiana
University graduation.
• Since 1840, Indiana University has included an invocation and a
benediction at its commencement ceremony.
• Clergy invited to deliver non-sectarian invocation and benediction.
• All graduating students are invited to attend, but attendance is
voluntary and no penalty is imposed for non attendance.
• Unlike Lee v. Weitzman, no cohersion to participate.
• College students are less impressionable than younger students and
should be able to appreciate the University’s policy is neutrality of
religion.
• Invocation and benediction serve legitimate secular purposes of
solemnizing public occasions rather than approving particular
religious beliefs.
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JOYNER v. FORSYTH COUNTY
653 F. 3d 341 (4th Cir. 2011)
cert. denied 132 S. Ct. 1097 (2012)
Prohibits sectarian prayers at meetings of the Forsyth
County Board of Commissioners.
Policy invited all religious leaders in the community to
offer a prayer and limited the frequency of
participation in order to insure a diverse representation
of religious groups.
Policy stated that prayers were not intended to affiliate
with or express a preference for any religion.
80% of prayers included Christian references.
“Citizens should come to public meetings confident in
the assurance that government plays no favorites in
matters of faith but welcomes the participation of all.”
COLES v. CLEVELAND BOARD OF EDUCATION
171 F. 3d 369 (6th Cir. 1999)
• Legislative prayer does not apply to Boards of
Education.
• Students are directly and actively involved in
School Board meetings in a way they are not
involved in the legislative sessions of other
public bodies.
DOE V. INDIAN RIVER SCHOOL DISTRICT
653 F. 3d 256 (3rd Cir. 2011)
cert. denied 132 S. Ct. 1097 (2012)
• Court holds School Board prayer to violate
Establishment Clause.
• Prayer policy disclaimed any particular religious
affiliation of the Board and specified that the prayer
was intended for Board members only.
• Court holds that school prayer cases, not legislative
prayer cases, control.
• Significant number of students attend Board
meeting.
• Board of Education setting similar to a graduation
or football game.
Greece v. Galloway Background
• From 1999-2007, every monthly town meeting
opened with prayer from a local clergyman
• No one was excluded or denied the opportunity
to offer prayer, but it was not specifically
publicized that individuals were welcome to
deliver prayer
• All participating ministers for 8 years were
Christian
• There existed a preference for ministers residing
in the town of Greece
Background, cont.
• The town did not review prayers for content
but some prayers did have a sectarian
message or reference specific ideologies or
holidays.
• Susan Galloway and Linda Stephens
complained that prayers insulted the “diverse
community”.
The Decision
• In a 5-4 split decision the majority opinion was
authored by J. Kennedy, joined in full by Roberts
and Alito, and in part by Thomas and Scalia
• Concurrence by Alito, joined by Scalia
• Concurrence by Thomas, joined by Scalia as to
Part II-B
• Dissent by Breyer
• Dissent By Kagen, joined by Ginsburg, Breyer and
Sotomayor
A New Era?:
Town of Greece, New York v. Susan Galloway
• The Coercion test wins out!
• Courts should not seek to review prayer for content
• Legislative prayer does not have to be exclusively
nonsectarian and the Court does not imply that no
constraints remain on its content
• The principle audience must be lawmakers and not the
public and it should occur during the ceremonial part
of the meeting to solemnize the occasion
• The ruling was applied to the “ limited context” of
legislative prayers
Following Greece v. Galloway
standards
• The process for selecting who may lead prayer
should be nondiscriminatory but does not
require searching beyond its borders to
achieve religious balancing.
• Board should not attempt to control or edit
content of any prayers
• The pattern of prayer should not over time
proselytize on behalf of one faith
Where are local school boards left?
• Still some debate if the “Marsh” standards apply
some courts tend to consider school boards a
legislative body within the context while others
would say the presence of meeting taking place
on school property, students in attendance and
open to public discussion on school related
matters make it less like a legislative body under
“Marsh”.
• How does this impact community college trustees
and college events?
Prayer in Public Schools and
Community Colleges
• It is still the General Rule, unchanged by the
recent Greece decision, that the use of prayer
or ceremonial bible reading in public schools
or at school-sponsored events is generally
unconstitutional.
• Moments of silence have consistently been
upheld as a way to solemnize an occasion
without violating the Establishment Clause.
Going Forward: Advice for Community
College Trustees
• If your district desires to have prayer at the start
of meeting its purpose should be to solemnize
the occasion and should be directed at board
members, not the public.
• It should be during the ceremonial portion of the
meeting and not when business is conducted.
• Prayer should not force participation or appear
coercive (i.e. No asking to bow heads or stand).