We may have another follow-up to Town of Greece. The Americans United for Separation of Church and State have sent a letter to the City of Huntsville, Alabama, alleging that the City discriminated against a Wiccan priest by inviting him to offer a prayer, and then uninviting him.
The city’s treatment of Mr. Kirk violates “[t]he clearest command of the Establishment Clause”—“that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). In Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), the U.S. Supreme Court held that that if local legislatures invite speakers to deliver solemnizing messages at meetings, they must “maintain … a policy of nondiscrimination.” Id. at 1824. The town’s practices in that case were upheld because the town assured the Court “that a minister or layperson of any persuasion, including an atheist, could give the invocation.” Id. at 1816. Indeed, in the Town of Greece, “[a] Wiccan priestess who had read press reports about the prayer controversy requested, and was granted, an opportunity to give the invocation.” Id. at 1817. And even if the city ultimately invites Mr. Kirk to speak at a later meeting, the city violated the Establishment Clause by subjecting him to additional obstacles, including the requirement that he delay his remarks so that the city could introduce him “more gently” at a later date.
Nor may city leaders deny or delay Mr. Kirk’s opportunity to speak on the ground that certain members of the community dislike Wiccans. Community outrage or prejudice does not justify imposing special conditions on speakers from minority faiths. To the contrary, the First Amendment protects even speech that “may strike at prejudices and preconceptions and have profound unsettling effect.” Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949). Speech may not be “burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 134 (1992). As the Supreme Court explained in Town of Greece, “[t]he First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech.” 134 S. Ct. at 1822.
I read Greece similarly, as imposing a nondiscrimination policy. But, not everyone agrees on this front.