Town of Greece v. Galloway
Argued November 6, 2013
Background
The First Amendment to the Constitution protects the fundamental right of religious freedom:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof....” The first part, the Establishment Clause, prevents the government from giving special
preference to any particular religion. The second part, the Free Exercise Clause, prohibits the
government from interfering with a person’s practice of his religion, in most instances.
This is a case about whether prayer before a legislative session violates the Establishment Clause of
the First Amendment.
Facts
Before 1999, the Town of Greece, NY, would open its Town Board meetings with a moment of
silence. Beginning in that year, however, the town began to invite local clergy to offer an opening
prayer. The prayer is delivered over the Board's public address system. Prayer-leaders have often
asked audience members to participate by bowing their heads, standing, or joining in the prayer. The
prayer is followed by the town’s normal business, including a public forum and a portion of the
meeting where business owners and residents apply for zoning changes or various permits.
The town has no formal policy for inviting prayer-givers, for the content of the prayers, or for any
other aspect of its prayer practice. The town says that it would permit any type of invocation and
that it has never denied a request to lead a prayer. The town does not publicize these facts to
residents, however. Town staff invites religious leaders to offer the prayers. From 1999 to 2007, all
of the clergy members who delivered the opening prayer were Christian. Between 2007 and 2010,
four prayers were delivered by non-Christian individuals. Of the invocations that took place from
1999 to 2010, two-thirds included uniquely Christian language (words like “Jesus,” “Christ,” or
“Holy Spirit”), and the remaining one-third spoke in more generally theistic terms.
Susan Galloway and Linda Stephens attended numerous Town Board meetings since 1999, and
began to complain about the prayer practice in 2007. In 2008, they sued the town for violating the
Establishment Clause of the First Amendment.
Issue
Did the Town of Greece’s practice of opening board meetings with a prayer violate the First
Amendment?
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Tests
The Supreme Court often relies on standards set out in previous cases to analyze new situations.
There are three different establishment clause “tests” that are relevant to this case:
―
The Marsh test (Marsh v. Chambers, 1983)
Legislative prayer has been the official practice of the U.S. House of Representatives and Senate
since before the First Amendment was ratified. In light of that history, the Court said that a practice
of legislative prayer that is not exploited to proselytize, to disparage any religion, or to advance any
one faith or belief does not violate the Establishment Clause.
―
The Endorsement test (Lynch v. Donnelly, 1984)
This test says a government action is invalid if it creates a perception in the mind of a reasonable
observer that the government is either endorsing or disapproving of religion.
―
The Coercion test (Lee v. Weisman, 1992)
This test says that the government does not violate the establishment clause unless it (1) provides
direct aid to religion in a way that would tend to establish a state church, or (2) coerces people to
support or participate in religion against their will.
Precedents
Marsh v. Chambers (1983)
The Nebraska Legislature had a long-standing tradition to open its session with a non-sectarian
prayer led by a state-employed chaplain. The Supreme Court ruled that this opening prayer tradition
was constitutional because it was non-sectarian and because the US has a long history of using
prayer in the government, including the U.S. Congress.
County of Allegheny v. ACLU (1989)
Here, the Supreme Court ruled that a city's holiday crèche display was unconstitutional. They
decided that the display of the crèche affiliated the government with one specific faith (Christianity).
The Court said that while “history cannot legitimate practices that demonstrate the government's
allegiance to a particular sect or creed.”
McCreary County v. ACLU (2005)
Three Kentucky counties displayed the Ten Commandments in courthouses and public schools.
The Supreme Court ruled that the displays violated the First Amendment, because their purpose was
to advance religion. The Court also noted that an outside observer would have concluded that the
government was endorsing a particular religion.
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Arguments for the Town of Greece

All fifty States and both Houses of Congress open legislative sessions with prayer. Each
session of the Supreme Court opens by asking “God” to “save the United States and this Honorable
Court.” The prayers offered in Greece before its Town Board meetings are no different in character
than any of these traditional and respected invocations.

The Court held in Marsh v. Chambers that opening legislative sessions with prayers does not
violate the Establishment Clause. Since there is no reason to overturn Marsh and since the activity
here is basically identical, this case should be decided the same way.

The town does not discriminate based on religion. The opportunity to open a Town Board
meeting with a prayer is open to all residents, not just Christians. Jewish, Baha’i, and Wiccan
adherents have all offered opening prayers for the Town Board.

Even though Christian prayer has been dominant in Town Board meetings, this is just a
reflection of the demographics of the town of Greece. The town of Greece should not be penalized
just because a large percent of its population is Christian.

No one is forced to participate in this prayer. Those not interested can sit quietly, step out of
the room, or even arrive after the prayer. There is no coercion here.
Arguments for Galloway

With the exception of four meetings that occurred right after this lawsuit was filed, Town
Board meetings in Greece have been led in prayer exclusively by Christian clergy. Often, the clergy
would ask the captive audience to recite the Lord’s Prayer in unison. Any reasonable person
observing these meetings would conclude that the town was specifically endorsing Christianity and
excluding other religions.

The practice of prayer before the Town Board meetings is entirely different from the prayer
traditionally delivered before Congress or the state legislatures. In state and federal legislatures, the
prayer is directed toward legislators, and members of the public are not present on the floor—they
watch from a public gallery.

Citizens attend town meetings not as observers, but as participants. Some must request
special Board permission for business licensing or zoning permits. Attendance in these cases is not
voluntary, and it is clear to all Board members which attendees participate in the prayer and which
do not. This amounts to coercion to participate.

Greece could continue to have opening prayers or invocations just so long as the invocations
did not single out one religion to the complete exclusion of others.

This case is different from Marsh. The prayers given at the Nebraska state legislature were
traditional invocations, delivered to the legislators, not the public, and were non-sectarian. They did
not use the explicitly Christian language present in the Town of Greece prayers.
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