In Town Of Greece, U.S. Supreme Court Affirms Constitutionality Of Prayer At Town Meetings

Mark E. Burkland is partner and Andrew N. Fiske is an associate in our Chicago office.

HIGHLIGHTS:

Local governments in Illinois and around the country should become knowledgeable about the U.S. Supreme Court's ruling this week in Town of Greece v. Galloway. In its 5-4 ruling, the Court declared that local governmental entities may start their meetings with invocations and prayers without violating the First Amendment's Establishment Clause. This week, a sharply divided U.S. Supreme Court issued its ruling in Town of Greece v. Galloway, a decision that overruled the lower court decision and determined that the prayers preceding Town Board meetings in upstate New York's Town of Greece did not violate the Establishment Clause of the First Amendment. Given the case's interest to local governments in Illinois and nationwide, this alert summarizes the Court's majority ruling and the concurring and dissenting opinions.

The Establishment Clause

The application of the Establishment Clause is central to this case. As the first 10 words of the First Amendment to the U.S. Constitution, the Establishment Clause states that: "Congress shall make no law respecting an establishment of religion . . .." The Supreme Court in 1947 recognized the Establishment Clause as applicable to the states under the Fourteenth Amendment.

Implications for Local Governments

The majority's ruling establishes that a local government body may begin its governing board's meetings with an invocation or prayer. The prayer may have a distinct religious orientation and need not be secularized. The prayer may not be delivered in a manner or under circumstances that compel the audience to participate. Nor may the governing body act differently toward persons who choose not to participate in the prayer from those who do participate.

To be certain of avoiding a First Amendment violation, the best practice for a local governmental body wishing to maintain or create a tradition of prayer before a meeting may be to invite clergy of various faiths to deliver the prayer, as a matter of policy. To avoid any implication that joining in the prayer is mandatory, governmental body should: (1) orient the prayer toward the governing body rather than toward the audience, (2) instruct prayer-givers not to ask the audience to stand, bow heads, recite or follow along, or otherwise participate in the prayer, and (3) remind prayer-givers that the audience likely includes people of many faiths and...