In
Galloway v. Town of Greece, (2d Cir., May 17, 2012), the U.S. 2nd Circuit Court of Appeals, in a case of first impression for it, created an extremely fact-dependent test for determining the constitutionality of opening meetings of legislative bodies with prayer. Here the court held that the prayer policy as implemented by Greece, New York, violates the Establishment Clause because "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity." The court explained:
a municipality cannot— in our judgment— ensure that its prayer practice complies with the Establishment Clause simply by stating, expressly, that it does not mean to affiliate itself with any particular faith. Nor can a municipality insulate itself from liability by adopting a lottery to select prayer-givers or by actively pursuing prayer-givers of minority faiths whose members reside within the town. Similarly, there is no substantive mixture of prayer language that will, on its own, necessarily avert the appearance of affiliation. Ultimately, municipalities must consider their prayer practices in context and as a whole....
We do not hold that the town may not open its public meetings with a prayer or invocation.... Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.”... Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution.... [I]t seems to us that a practice ... that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief—is fully compatible with the First Amendment.
... [However, a] legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.
New York Law Journal reports on the decision.
