Did Town of Greece Impose a “Policy of Nondiscrimination” for Legislative Prayer?

June 2nd, 2014

One of the lingering questions since Town of Greece is what has actually changed? In an interview with Tony Mauro, Ayesha Khan, Legal Director at Americans United for Separation of Church and State offers some comments on how she views Town of Greece,and how it will impact her group’s litigations strategy. In my mind, the key part of the interview was how she viewed the holding of Town of Greece. Did it impose any additional restrictions beyond Marsh?

The other misconception is that the Supreme Court has created an anything-goes zone for legislative prayer. Some people have said that local governments are now free to invite whomever they choose, and that those who are invited can say whatever they please. In fact, the court set forth some pretty substantial limitations: You cannot discriminate among prayer-givers, prayer-givers cannot proselytize, and board members cannot request that audience members participate in the prayer by standing or bowing their heads. Those are just some of the limitations that the court announced.

The emphasized portion is most salient to American United and the ACLU’s letter to Chesterfield County, Virginia which I blogged about here. Chesterfield limits legislative prayers to monotheists, and excludes “neo-pagans.” I read Greece the same way that Khan did, in particular placing a limitation on whether the government can pick and choose which religions speak. This is the “policy of nondiscrimination.” (This seems to resemble the All-Comers policy at issue in CLS v. Martinez).

For example, this passage from Justice Kennedy’s opinion:

The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. The quest to promote “a ‘diversity’ of religious views” would require the town “to make wholly inappropriate judgments about the number of religions [it] should sponsor and the relative frequency with which it should sponsor each,” Lee, 505 U. S., at 617 (Souter, J., concurring), a form of government entangle­ ment with religion that is far more troublesome than the current approach.

I read this as saying that the Town is not required to look outside its borders to find clergy from other religions, so long as it doesn’t discriminate from the locals. But within Chesterfield, polytheists who are willing to lead prayers are being turned away (based on the ACLU’s facts). This would not seem to be a “policy of nondiscrimination” of those in the community.

Further, Justice Alito makes a similar point in his concurring opinion. He seems to be of the mind that there would be a problem if certain faiths were deliberately omitted?

If, as the principal dissent appears to concede, such a rotating system would obviate any constitutional prob­ lems, then despite all its high rhetoric, the principal dis­ sent’s quarrel with the town of Greece really boils down to this: The town’s clerical employees did a bad job in compil­ ing the list of potential guest chaplains. For that is really the only difference between what the town did and what the principal dissent is willing to accept. The Greece clerical employee drew up her list using the town directory instead of a directory covering the entire greater Roches­ ter area. If the task of putting together the list had been handled in a more sophisticated way, the employee in charge would have realized that the town’s Jewish resi­ dents attended synagogues on the Rochester side of the border and would have added one or more synagogues to the list. But the mistake was at worst careless, and it was not done with a discriminatory intent. (I would view this case very differently if the omission of these synagogues were intentional.) … When a municipality like the town of Greece seeks in good faith to emulate the congressional practice on which our holding in Marsh v. Chambers, 463 U.S.783 (1983), was largely based, that municipality should not be held to have violated the Constitution sim­ ply because its method of recruiting guest chaplains lacks the demographic exactitude that might be regarded as optimal. …. But if, as prece­ dent and historic practice make clear (and the principal dissent concedes), prayer before a legislative session is not inherently inconsistent with the First Amendment, then a unit of local government should not be held to have violated the First Amendment simply because its procedure for lining up guest chaplains does not comply in all respects with what might be termed a “best practices” standard.

In this sense, Justice Alito seems to agree with the principal dissent that it would be problematic to deliberately exclude certain faiths. Likewise, Justice Alito does not seem to contest the Second Circuit’s prohibition about favoritism among religions:

As a result of this procedure, for some time all the prayers at the beginning of town board meetings were offered by Christian clergy, and many of these prayers were dis­tinctively Christian. But respondents do not claim that the list was attributable to religious bias or favoritism, and the Court of Appeals acknowledged that the town had “no religious animus.” 681 F. 3d 20, 32 (CA2 2012).

So what exactly does Town of Greece hold? The Chesterfield suit may present a much cleaner vehicle, because unlike in Town of Greece, the government went out of their way to exclude certain faiths.