Over three decades ago, in Marsh v. Chambers,1 the Supreme Court upheld the constitutionality of a state legislature’s practice of opening each session with a prayer by a chaplain paid with state funds.2 Rather than applying its at-the-time customary Establishment Clause test, the Lemon test,3 the Court based its decision on the long, unbroken history of legislative prayer dating back to the time of the drafting of the First Amendment.4 Since Marsh, the Court has taken a bewildering array of different approaches to the Establishment Clause, leaving it unclear which test should govern Establishment Clause inquiries generally, as well as how the Court might approach, specifically, another legislative prayer case.5 Last Term, in a 5–4 decision in Town of Greece v. Galloway,6 the Court reaffirmed Marsh and again relied on history in upholding a town’s practice of opening its monthly town board meetings with a prayer offered by volunteers from the local community.7 While the decision did little to alleviate the doctrinal muddle of the Court’s Establishment Clause jurisprudence, Greece highlights the deep divisions among the Justices on a central question underlying the Establishment Clause: what the government is required to do, or even permitted to do, to accommodate religious pluralism in an increasingly diverse society.
In 1999, Greece, a town in upstate New York, began a practice of inviting local members of the clergy to lead prayer sessions to open its monthly town board meetings.8 Employees from the town’s Office of Constituent Services initially selected these volunteer “chaplains of the month” by calling congregations within town limits based on a list in a local directory; over time, town employees began to rely on a list of “Town Board Chaplains” who had previously accepted those invitations and had agreed to return in the future.9 Because “nearly all of the congregations in town were Christian,” all of the participating ministers between 1999 and 2007 were Christian.10 The town provided no guidelines or restrictions on the content of the prayers, and the ministers composed prayers that contained both civic and distinctly Christian themes.11 While the town never denied anybody the opportunity to give prayer, neither did it publicize its all-comers policy.12
In 2010, two local residents brought suit alleging that the town’s prayer practice violated the Establishment Clause for two reasons: the town intentionally excluded non-Christian prayer, and the town impermissibly permitted sectarian prayer.13 The district court awarded summary judgment to the town on the basis that the town’s clerical employees exercised no impermissible preference for Christianity in selecting prayer-givers,14 and that Marsh did not require legislative prayers to be nonsectarian.15
The Second Circuit reversed.16 Writing for a unanimous panel, Judge Calabresi found that, under the totality of the circumstances as viewed by a reasonable objective observer, the town’s prayer practice conveyed an impermissible “official affiliation” with Christianity.17 The fact-specific decision relied on “the interaction of the facts present in this case” rather than “any single aspect of the town’s prayer practice.”18
The Supreme Court reversed. Writing for the Court, Justice Kennedy19 began by emphasizing the long tradition of legislative prayer in the United States. He referred to the Court’s previous case on legislative prayer, Marsh, in which the Court held that, “[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society.”20 In particular, the appointment of official chaplains in the First Congress was evidence that legislative prayer was “accepted by the Framers.”21 The Court’s inquiry, then, was “whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.”22
The Court then rejected the argument that legislative prayer must be nonsectarian to fit within this historical tradition and to fall within the holding of Marsh.23 In fact, not only was mandating nonsectarian prayer not required, but requiring nonsectarian prayer was also itself prohibited. “Once [government] invites prayer into the public sphere, [it] must permit a prayer giver to address his or her own God or gods as conscience dictates.”24 To hold otherwise and require legislatures that sponsor prayers to examine their content to ensure that they refer only to a “generic God” would result in greater government entanglement than Greece’s practice of noninvolvement did.25
The Court also rejected the argument that Greece was obligated to do more to seek out non-Christian prayer-givers to avoid impermissible bias against minority faiths. While the town was obligated to follow “a policy of nondiscrimination,” the overwhelmingly Christian nature of the prayers in Greece did not violate the Constitution where that prevalence was due to the predominance of Christian congregations within the town borders rather than bias by the town leaders.26 To hold otherwise and require the town to reach outside its borders to achieve “religious balancing” would result in even greater government entanglement with religion than would Greece’s approach.27
Having found that Greece’s prayer policy fell within the scope of Marsh, Justice Kennedy28 proceeded to find that the prayer practice was not sufficiently coercive to raise constitutional concerns.29 He reasoned that the history of legislative prayer mitigated any coercive effect because:
It is presumed that the reasonable observer is acquainted with [the] tradition [of legislative prayer] and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews.30
While he noted that the prayer would have been impermissibly coercive “if town board members [had] directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity,” there was no evidence that such impermissible coercion had taken place.31 Thus, Justice Kennedy found no conflict between the town’s practices and the Establishment Clause.
Justice Alito concurred,32 writing separately to suggest that Justice Kagan’s dissent would render opening prayers legal in theory but impossible in practice.33 A requirement that prayer be nonsectarian would burden the town by requiring it to prescreen and edit prayers to ensure that they met the “daunting, if not impossible” requirement of being acceptable to members of all religions.34 Similarly, demanding anything more than a good faith effort from towns to invite individuals of many faiths to give opening prayers would create too high a bar, “pressur[ing] towns to forswear altogether” legislative prayer in order to avoid constitutional challenges.35
Justice Thomas concurred in part and concurred in the judgment.36 Writing for himself only, Justice Thomas reiterated his position that the Establishment Clause should be understood as a federalism provision protecting state churches from the establishment of a national religion and should not be incorporated against the states.37 Then, writing for himself and Justice Scalia, he recited a narrower understanding of the coercion test that prohibits only “actual legal coercion,” not merely psychological coercion.38
Justice Breyer dissented. He agreed with the Second Circuit’s view that the decision should be “fact-sensitive” and consider the “totality of the circumstances.”39 Finding “no test-related substitute for the exercise of legal judgment,”40 Justice Breyer would have “applied [his] legal judgment to the relevant facts” and found an Establishment Clause violation.41
Justice Kagan wrote the principal dissent.42 In her view, the town violated the “norm of religious equality” by treating minority citizens as outsiders at the very moment they sought to exercise their right to engage in participatory democracy.43 While she expressed continued agreement with the Court’s decision in Marsh, she distinguished Marsh on the basis that the prayer there had opened a legislative floor session in which citizens had no direct role and often were not even present;44 by contrast, Greece’s board meetings involved participation by ordinary citizens, who were present in order to “engage with and petition their government, often on highly individualized matters.”45 By showing a preference for a particular religion in “a place where individuals come to interact with, and participate in, the institutions and processes of their government,”46 the town violated “the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”47 This situation, Justice Kagan explained, was coercive and violative of the principle of religious and political equality because it forced a non-Christian citizen appearing before the town board to choose to join the prayer or to risk aggravating the board members before whom she would soon appear.48 Instead, Justice Kagan suggested, the town could have avoided this de facto establishment of religion either by directing invitees to give nonsectarian prayer or by inviting clergy of many faiths to give prayer — ensuring that more citizens felt included in the prayer-giving process and that these citizens did not perceive their government as explicitly Christian.49
With its holding built mostly around historical invocation and Marsh, Greece did little to elucidate the Court’s muddled Establishment Clause jurisprudence or to clarify which doctrinal test should apply to Establishment Clause challenges in other factual contexts. But the opinions in Greece do highlight a deep divergence among the Justices on the question of what the Establishment Clause requires the government to do, or even permits it to do, to accommodate religious diversity.
In deciding Greece, the Justices faced a murky doctrinal landscape. A number of different Establishment Clause tests had emerged out of the Court’s previous opinions,50 and the Justices had never reached consensus on which test should govern.51 Moreover, it was unclear if Marsh had introduced a new, broadly applicable approach that relied on history or if legislative prayer was sui generis.52
Although the Justices could have used Greece as an opportunity to clarify the doctrine, they did not do so. With no test garnering support from a majority of the Court, Establishment Clause jurisprudence remains as cloudy as it was before. If anything, Greece created further uncertainty. For one, the Court again declined to expressly reject the Lemon test; in fact, the majority opinion did not even mention the test and Justice Breyer’s dissent mentioned the case itself only once in passing.53 While Justice Kennedy’s opinion might be read as folding history into his general coercion test,54 it also seemed to invoke the reasonable observer test as part of the coercion analysis.55 Either way, the section of Justice Kennedy’s opinion on coercion did not receive support from a majority of the Court. In her dissent, Justice Kagan agreed with Marsh’s reliance on the history of legislative prayer56 but did not explicitly engage with either the reasonable observer approach or the coercion test; instead, she introduced what is debatably an entirely new participatory democracy perspective.57 Thus, while all the Justices seem to agree that history likely plays some role in Establishment Clause interpretation, Greece leaves uncertain the status and relevance of the previous doctrinal tests, as well as exactly how history fits into those approaches.
Still, although Greece may provide no more doctrinal clarity, the opinions reveal two fundamentally distinct understandings among the Justices of what the Constitution permits or requires the government to do to accommodate religious pluralism in the public sphere. The Justices’ differing views on the Constitution’s treatment of diversity lead in opposite directions: to either a minority-protective or a majority-favoring Establishment Clause.
In Justice Kagan’s view, the Establishment Clause not only permits but also requires the government to protect minority believers, such as by allowing within the public sphere only those forms of religious expression that everyone — or at least most people — will find acceptable. To her, the Establishment Clause is a minority-protective device that prescribes an active governmental role in preventing exclusion of minorities. The clause’s purpose is to prevent the “religiously based divisiveness” that results from marginalization of minority faiths.58 As a result, the Establishment Clause requires that when government sponsors legislative prayer, it must accommodate minorities by ensuring either that prayers are generic and nonsectarian or that clergy of many faiths are invited.59
But in Justice Kennedy’s view, the Constitution does not require the government to take such steps to ensure inclusivity, and may even prohibit such involvement. As long as the government adheres to a “policy of nondiscrimination,”60 it can allow people to fully express their religious beliefs in the public sphere, even if the result is that the majority faiths predominate.61 In fact, it might even be largely impermissible for government to attempt to control the content of such religious expression — in Justice Kennedy’s view, the Establishment Clause is concerned less with minorities feeling marginalized and more with the backlash that might result when longstanding traditions are threatened by government efforts to promote inclusivity.62 While minorities are presumed to understand expressions of the majority religion as part of the prevailing culture of the society in which they live, not as an attempt to coerce their adherence to the majority faith,63 government efforts to affirmatively promote a balance of religious views may result in “a form of government entanglement with religion that is far more troublesome”64 because such efforts would require government “to make wholly inappropriate judgments” about which religions to sponsor and how much to sponsor them.65
In short, Justice Kagan sees the Establishment Clause as concerned with the experience of religious minorities while Justice Kennedy reads the clause as preventing government from curtailing expressions of the majority faith in order to ensure inclusion of those in the minority — and these opposing perspectives inform how the Justices portray the proper role of the government under the Establishment Clause.66 Justice Kennedy views the clause as conferring a negative obligation: government merely ensures equal access to all religious faiths and can exercise minimal content restrictions beyond that.67 In this view, Justice Kagan’s suggestion of nonsectarian prayer might itself result in impermissible government entanglement with, or censorship of, prayer — either prescreening or after-the-fact review with consequences for prayer-givers who violate the nonsectarian requirement.68 But to Justice Kagan, the Constitution imposes a positive obligation on government to engage in this supposed entanglement to protect followers of minority faiths. In other words, each Justice understands the clause as designating a different role for the government in accommodating religious pluralism in a democratic society.69
This difference in the way the Justices view the government’s role in accommodating religious pluralism may extend beyond the confines of the Establishment Clause to questions about how the Constitution envisions the government’s role in accommodating diversity in other contexts. Justice Kennedy’s views on religious diversity in Greece echo a common refrain in the Court’s race-based affirmative action and campaign finance cases that government may not actively seek to promote diversity in those contexts by balancing voices.70 Meanwhile, Justice Kagan’s sensitivity to the minority population of Greece parallels the dissenting Justices’ views in those cases: that the Constitution permits more active governmental involvement in accommodating minority members of the diverse polity.71 Perhaps, then, Greece fails to clarify the doctrinal muddle of the Establishment Clause because, at its core, it reflects broader divides among the Justices over how the Constitution envisions the government’s role in accommodating diversity in other contexts, such as race-based affirmative action and political speech.
Although it remains unclear what specific doctrinal test the Court might use in its next Establishment Clause case, the opinions in Greece are illuminating in the way that they display opposing perspectives on the underlying question of what the government may or must do to accommodate religious diversity. In that respect, Greece may be much more helpful than its doctrinal muddle might suggest: more important than knowing which test to apply is understanding the central animating questions that inform them. Greece does not clarify the language the Justices will use in the future to resolve an Establishment Clause controversy — but the contours of the underlying debate have become a little clearer.