The U.S. Supreme Court agreed to review a controversial Establishment Clause case that asks whether—and if so, how—local governments may begin public meetings with prayers (Town of Greece v. Galloway) The issue is particularly significant for state legislatures because it has the potential to invalidate their nearly universal practice of opening each session day with a prayer. Connecticut has another strong interest in the case’s outcome because its courts must now analyze all Establishment Clause cases under Galloway’s standard.
In Galloway, two residents of Greece, New York claimed that the town board’s practice of opening monthly meetings with a prayer violated the 1st Amendment’s Establishment Clause. Town officials countered that members of all faiths and atheists were welcome to give the opening prayer. In practice, almost all of the prayer-givers were Christian and a substantial majority of the prayers contained uniquely Christian language. The trial court dismissed the case, but the 2nd Circuit reversed, holding that, based on the facts, the legislative prayer practice constituted an endorsement of the Christian beliefs.
In reaching its decision, the appellate court departed from the deferential approach the Supreme Court took in the only legislative prayer case that has come before it. In that case, the Court upheld the constitutionality of the Nebraska legislature’s prayer practices, indicating that judges need not examine a prayer’s content unless they found evidence that the government’s motive was improper. In contrast, the 2nd circuit’s standard is intensively fact-based. It requires courts to determine, on a case-by-case basis, whether, under the totality of circumstances, an ordinary, reasonable observer could interpret the practice, including the prayer’s content, as an endorsement of a particular faith or creed over another.
The appeals court stressed it was not (1) ruling that government bodies could never open meetings with prayers, or (2) adopting a specific test that allows prayer in theory but makes it impossible in reality. Nevertheless, it acknowledged that the standard would be extremely hard to apply and suggested that, given these constitutional difficulties, those seeking to formulate legislative prayer practices might be prompted to “pause and think carefully before adopting them.”
