In May 2012, the U.S. Court of Appeals for the 2nd Circuit issued an aggressive, secular ruling in a "legislative" prayer case arising from a small town in western New York. In Town of Greece v. Galloway, the 2nd Circuit ruled that Greece's permitting public prayer before town meetings violated the First Amendment. The court ruled in this manner despite the town's highly inclusive policy that allowed even a practicing Wiccan and an atheist to offer civic prayers. No person's attempt to offer a prayer was blocked.
Even though the town's policy was not discriminatory, atheists sued the town, arguing that Greece was violating the First Amendment. The district court disagreed and deemed the town's practices constitutional. On appeal, the 2nd Circuit reversed. That would have been bad enough, but the 2nd Circuit supplied a test for "legislative" prayers that would invalidate virtually all civic prayers across America -- if its reasoning were applied by other courts around the country.
Judge Guido Calabresi, writing for a three-judge 2nd Circuit panel, stated that "the town's prayer practice had the effect, even if not the purpose, of establishing religion." The court applied a totality-of-the-circumstances analysis that paid close attention to the content of the prayers. The court recognized the prayers "did not preach conversion, threaten damnation to nonbelievers, downgrade other faiths, or the like." Nevertheless, the court balanced factors like the proportion of prayers offered by self-identified Christians, whether prayers "contained uniquely Christian references," and finally whether the person offering the prayer used first-person plural pronouns ("we" or "us").
This sort of analysis stands in sharp contrast with the Supreme Court's landmark 1983 ruling in Marsh v. Chambers, which upheld the constitutionality of legislative prayers and chaplaincies based on its assessment of congressional practice. The court noted that "* n September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights." That Congress saw no constitutional incongruity between the protections of the First Amendment and hiring a chaplain to open each congressional day with prayer.
Marsh left a benign, tolerant rule in place with regard to allowing legislative bodies to conduct prayers and hire chaplains. Over time, and relying on tangential remarks in a 1989 Supreme Court opinion, federal courts of appeal have been undermining the clear understanding of the law set down in Marsh. The 2nd Circuit opinion in Galloway is only the worst of these opinions. Its balancing test is essentially impossible to satisfy. If the Galloway ruling stands, all legislative prayers in the 2nd Circuit (New York, Vermont and Connecticut) would effectively cease. Furthermore, legislative prayers across the country and on Capitol Hill would be endangered by ongoing litigation employing the 2nd Circuit's reasoning.
Forty-nine members in the House of Representatives filed an amicus brief urging the Supreme Court to grant the petition for review of the 2nd Circuit decision filed by the Town of Greece. The brief, on which Ken Klukowski of the Family Research Council is counsel of record, presents an arresting analysis of the prayers made in the recently concluded 112th Congress. There were 304 prayers offered before daily sessions during that Congress, 179 (59 percent) from the House chaplain, and 125 (41 percent) from guest chaplains. This is a pretty good sample size.
Analyzing these prayers in light of the three-factor test set forth in Galloway yields interesting results. First, it turns out that 97 percent (296 of 304) of the prayers were offered by Christians. Second, of the 304 prayers, 154 were identifiably Christian in their content. Finally, 97 percent of the prayers offered made use of the first-person plural pronouns. In sum, almost all prayers offered in the U.S. House of Representatives in the 112th Congress would have run afoul of at least one of the criteria set out in Galloway.
Assuming congressional prayer practice has not changed significantly since 1983, one can reasonably conclude that Congress' approach to prayer, approved of 30 years ago in Marsh, would not survive Galloway-type analysis. Therefore, the Supreme Court should grant the petition for review submitted by the Town of Greece and re-establish the primacy of the clear, open-minded rule set forth in Marsh. Galloway must be overturned if legislative prayers across all of America are to continue to extend heavenward as we seek the guidance of Almighty God for our various governments.
Chris Gacek is a senior fellow at the Family Research Council.