Lebanon Reporter

July 26, 2013

N.Y. town prayers at issue as Supreme Court takes up religion for 1st time in 30 years

By Greg Stohr
Bloomberg News

---- — On a sultry July evening, Supervisor John Auberger began the Greece, N.Y., town board meeting in his usual way: He invited a Christian minister to seek God's blessing.

"Would you bow your heads with me as I pray?" Nathan Miller of Northridge Church asked the audience. Auberger and 14 other officials on the dais listened silently as Miller asked God to guide the meeting while invoking "your son, Jesus."

The town's solemn prayers are now the focus of a Supreme Court fight that may reshape the legal limits on religious expression at official functions nationwide. The case, a highlight of the nine-month term that starts in October, will mark the first time the court has considered legislative prayer since upholding the practice 30 years ago. Under Chief Justice John Roberts, the court has been receptive to efforts to bring religion into the public square.

Two residents of the Rochester suburb have waged a five- year campaign, arguing that the town is going beyond what the justices allowed in 1983, violating the Constitution by endorsing Christianity.

"Government should be inclusive," said Susan Galloway, 51, one of the women challenging the practice. "There are people who don't believe, and they're part of this country, too. We all have a right to be part of it and not feel excluded."

The dispute has turned bitter at times. Galloway and her friend Linda Stephens, a retired school librarian, say they have received anonymous letters warning them to "be careful." Stephens woke up one morning to discover someone had dug up her mailbox and placed it on top of her car.

The town rejects their complaint, arguing that it hasn't shut out members of other faiths. Officials say the opening prayer has been delivered by a Jewish man, a Bahai leader and a Wiccan priestess who invoked Apollo and Athena.

"People from other faiths did volunteer, which is great," said one of Greece's lawyers, Brett Harvey of the Alliance Defending Freedom in Scottsdale, Ariz. "The town has no problem with any of that."

The case will test the impact of the court's changed composition over the past decade and the ideological shift that has left Justice Anthony Kennedy as the most likely deciding vote. The justices will probably hear arguments in November or December.

The court has taken up religion cases only sparingly since Roberts became chief justice in 2005. In perhaps the biggest ruling, a 5-4 decision in 2010, it revived a federal law designed to protect a Christian cross erected as a war memorial in a national preserve.

"The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm," Kennedy wrote in the court's lead opinion in that case.

Supporters say legislative prayer has been a widespread practice since the country's founding — and not something that was called into question when the First Amendment, adopted in 1791, barred the "establishment of religion" by the government. The vast majority of state legislative bodies open the day with some kind of prayer, as do both houses of Congress.

"It's part of our historical tradition and the fabric of our country," said Vince DiPaola, the founder of the Lakeshore Community Church, an evangelical congregation, who has delivered the prayer at town meetings at least seven times.

Critics say that tradition doesn't mean government bodies can favor one religion over others. Ayesha Khan, who represents the challengers, says at least half the state legislatures take steps to ensure the invocations are nonsectarian.

"It's not unusual for legislative bodies to ask guest prayer-givers to pray in an inclusive fashion, and that's exactly what we're asking for here," said Khan, a lawyer with Washington-based Americans United for Separation of Church and State.

The prayer tradition is relatively new in Greece, a 96,000- person town about five miles from Rochester. Before Auberger became supervisor in 1998, the town began meetings with a moment of silence. Prayers started the following year, according to a federal appeals court that ruled the policy unconstitutional.

It wasn't until 2007 that the practice became a public controversy. Galloway, a Jewish woman who has lived in Greece since 2000, said she grew uncomfortable after repeatedly hearing Christian prayers while attending board meetings to show her support for public-access cable television.

Stephens, 70, a soft-spoken atheist who has lived in Greece since 1970, developed similar objections after attending meetings that touched on various issues, including the creation of a disc golf course in a public park.

The two women say they sought to discuss the issue with Auberger, only to find themselves meeting with two staff members instead. Galloway and Stephens say they were told at the meeting that they could leave the room during invocation.

Auberger declined to comment on the prayer policy, referring questions to the town's lawyers.

Galloway and Stephens sued in February 2008, saying the town was "sponsoring persistent sectarian — and almost exclusively Christian — prayers." Until that year, they said in their complaint, the town was selecting its monthly prayer- giver from a list of 37 clergy members, all from Christian churches. From 2004 to February 2008, more than three-quarters of the prayers were explicitly Christian, according to the lawsuit.

"There's too much mixing of Christian conservative religion and town politics," said Stephens.

Greece created its list largely by culling names from local directories. The town says it also accepts volunteers of any faith, and in 2008 non-Christians delivered four prayers: two by the Jewish man, one by the chairman of the local Bahai congregation and one by the Wiccan priestess.

Galloway and Stephens fault the town for not publicizing its volunteer policy. They say the result has been that almost all the prayers in recent years have been delivered by Christians.

The July 16 invocation lasted less than a minute, including Auberger's introduction. Miller thanked God for "the many freedoms that we enjoy here in America" and for "the freedom that comes from knowing your son, Jesus." He spoke facing an audience of barely 20 people — including Galloway, Stephens and a group of uniformed police officers there to see a new colleague take her oath.

As he spoke, four of the five board members — all but Auberger — took up Miller's suggestion to bow their heads. As Miller ended with the word "amen," many throughout the room answered in kind.

Galloway and Stephens say that in previous meetings, officials went further in suggesting that the town was adopting the prayer — and the Christian faith — as its own. In their lawsuit, the women describe board members making the sign of the cross, Auberger presenting plaques to the "chaplain of the month," and prayer-givers asking the audience to participate by standing or reciting the Lord's Prayer.

The two women also describe meetings attended by children, there to lead the Pledge of Allegiance to fulfill a school civics requirement.

The New York-based 2nd U.S. Circuit Court of Appeals said the town's prayer practice "must be viewed as an endorsement" of Christianity, violating the Constitution. The three-judge panel said the selection process "virtually ensured a Christian viewpoint," faulting Greece for relying on clergy almost entirely from places of worship within the town's borders.

The appeals court also said officials failed to explain that the prayers weren't intended to affiliate the town with a particular creed.

"The town had an obligation to consider how its prayer practice would be perceived by those who attended town board meetings," Judge Guido Calabresi wrote for the court.

The town contends the "endorsement test" — a standard created by now-retired Supreme Court Justice Sandra Day O'Connor — doesn't apply to legislative-prayer cases.

Such a test "requires courts to parse prayers' content and thus inevitably forces courts to play the role of theologian, making judgments about the prayers' validity based on the supposed religious effect they are likely to have on observers," the town argued in court papers.

Greece says the 1983 Supreme Court decision, Marsh v. Chambers, permits legislative prayers as long as the government doesn't discriminate in selecting the person or use the practice to proselytize or disparage a faith.

The town has the backing of Robert Palmer, a Presbyterian minister whose prayers before the Nebraska state legislature were at issue in the 1983 case. In court papers, he said his prayers were "more identifiably Christian" than those in Greece.

"It's clear that the Constitution allows the government to open its meetings by invoking divine guidance," said Harvey, the lawyer for the town. "And once you do that, you need to let people pray consistent with the dictates of their own conscience."