Meaghan M. McDermott, Staff writer
A court case started in 2008 by local residents concerned by explicitly Christian prayers at Greece Town Board meetings will be heard next week by the U.S. Supreme Court.
The outcome will have national implications.
"We are encouraged and believe we have the law on our side," said Brett Harvey of Alliance Defending Freedom, the national Christian-rights watchdog group representing Greece in its appeal of a lower court ruling that its prayer practices are unconstitutional. "This case has the potential to set precedent that will last for decades. The last time the court heard a similar case was 30 years ago."
In that case, known as Marsh v. Chambers, the court ruled it is permissible to open legislative sessions with prayer, and that doing so is part of the nation's history and tradition.
The court will hear oral arguments in the Town of Greece v. Galloway on Wednesday, Nov. 6.
Harvey and Heather L. Weaver, senior staff attorney with the American Civil Liberties Union, spoke about the case Tuesday night during a forum at Nixon Peabody LLP in Rochester. The ACLU has filed a friend-of-the-court brief on behalf of plaintiffs Susan Galloway and Linda Stephens.
"This case is not about the individual's right to pray but about the right of the individual to be free from government prayer tradition," said Weaver. She asked the audience to imagine being a non-Christian at a town board meeting where an explicitly Christian prayer opens the proceedings. "Would you feel comfortable remaining seated? Or stepping outside of the room when you had to come back and ask the board to grant you a zoning variance? The First Amendment prohibits the government from forcing that choice on you."
But Harvey said the government has no place stepping in to say what constitutes proper prayer.
"The plaintiffs in their arguments have conceded that prayers are permissible," he said. "The only remaining question then is who gets to decide what to say in the prayer? And is it the town's job to censor?"
The forum was presented by the Genesee Valley Chapter of the New York Civil Liberties Union, Rochester Lawyers Chapter of the Federalist Society and the Monroe County Bar Association.
A moment of silence was commonplace at Greece Town Board meetings prior to 1999, when Supervisor John Auberger instituted a new policy of having local clergy offer pre-meeting invocations. The town sought clergy from an index of local church services.
In their 2008 case Galloway and Stephens, represented by Americans United for Separation of Church and State, argued that prayers in Jesus' name before the meetings flouted the First Amendment.
U.S. District Court Judge Charles Siragusa disagreed in August 2011, ruling that the prayers were constitutional and that members of any particular faith were not being excluded by the town.
However, a three-judge panel of the Second Circuit U.S. Court of Appeals in 2012 reversed his decision, noting that of the more than 130 prayers offered between 1999 and 2010, only four were offered by non-Christians and that two-thirds referred to "Jesus Christ" or the "Holy Spirit."
The appellate court did not bar prayer at Greece's meetings, nor did it rule that the town should censor prayers.
Justices said that although the town didn't deny anyone who asked the opportunity to deliver a prayer, "the town neither publicly solicited volunteers...nor informed members of the general public that volunteers would be considered or accepted, let alone welcomed, regardless of their religious beliefs or non-beliefs," they wrote. Thus, the town's actual practice "virtually ensured a Christian viewpoint" and "must be viewed as an endorsement of a particular religious viewpoint."
Weaver said the town must take responsibility.
"The government can't get into the prayer business and then wash its hands of the content," she said. "If clergy wants to stand outside the town hall with a megaphone and pray, or if the town board wants to gather together and pray themselves, they're free to do that and the ACLU will be there to fight for them.
"But otherwise, they must ensure that prayer at their meeting is as inclusive and non-denominational as possible."
Harvey cautioned against unwarranted government intrusion.
"No one starts out a prayer saying 'To whom it may concern,'" he said. "Everyone who prays, prays to a God or concept that is meaningful to them. You stifle religious freedom if you have government decide which prayers are acceptable or not. Requiring generic prayer excludes the devout."
Case summaries and related filings in the case are available online via Scotusblog.com, a blog devoted to covering U.S. Supreme Court cases.