How Will Schools Be Affected by Greece v. Galloway?
by Damon Huss
[Part of an ongoing series of blog posts at CRF Blog related to the mission of the California Three Rs Project (Rights, Responsibility, Respect), a program for finding common ground on issues related to religious liberty and the First Amendment in public schools, found on the web at ca3rsproject.org. See previous posts here and here.]
This week, the U.S. Supreme Court issued its opinion in the case of Town of Greece v. Galloway, in which the court held that ceremonial sectarian prayers to open local or state legislative sessions are not, in themselves, unconstitutional. At issue was the nearly exclusive use of Christian prayers delivered by Christian clergy in the town council sessions of Greece, New York, between the years of 1999 and 2008. The case will very likely serve as precedent for other brewing issues related to religion and public schools.
Plaintiffs in Galloway challenged the prayers in the town of Greece on grounds that they violated the establishment clause of the First Amendment. In Marsh v. Chambers (1983), the Supreme Court had held that non-sectarian prayers, or prayers that invoke a deity without reference to any particular religion, were constitutional. In the Galloway case, the Second Circuit Court of Appeals had held that, based on Marsh and other cases, the pattern of prayers in the town of Greece was an official endorsement of Christianity over other beliefs and therefore did violate the establishment clause. The Second Circuit relied on the “endorsement test,” which had been articulated by Justice Sandra Day O’Connor when she was an associate justice of the Supreme Court.
Justice Anthony Kennedy, however, authored the majority opinion for the Supreme Court in Galloway and rejected the use of the endorsement test in favor of the “coercion test.” According to Kennedy, Justice Alito, and Chief Justice Roberts, who joined his opinion, the issue is not whether government “endorses” a religion, but whether government coerces religious belief by ordering citizens to join in prayer, or by criticizing or denigrating those who do not participate in the prayer. Moreover, coercion cannot be determined by a single legislative prayer, but only by a “pattern of prayers over time.” (Justices Antonin Scalia and Clarence Thomas joined in the judgment of the court, but each filed a separate concurring opinion adding different interpretations of the meaning of coercion.)
The Galloway opinion poses a serious challenge to the long-standing “Lemon test,” named after the case of Lemon v. Kurtzman (1971) and upon which the endorsement test is based. The Lemon test requires that any government action involving religion must have a secular purpose, not have the primary effect of advancing or inhibiting religion, and not require excessive entanglement between church and state. Examples of government action include legislative prayer, teaching creationism in a public school, or a government tax-subsidy for religious schools. If the government action fails one part of the Lemon test, it is unconstitutional.
The Supreme Court used the Lemon test in the case of Lee v. Weisman in 1992, in which a benediction delivered by a rabbi at a public high school graduation was held to be unconstitutional. In the Galloway opinion, Justice Kennedy notes that the school authorities in Lee maintained “close supervision over the conduct of the students.” He then distinguishes the legislative setting in the town of Greece. “Should nonbelievers choose to exit the room during a prayer they find distasteful,” Kennedy writes, “their absence will not stand out as disrespectful or even noteworthy. And should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed.”
Last year, the court agreed to hear Elmbrook School District v. Doe, a case involving a public high school’s use of a nondenominational Christian church for graduation ceremonies. The court also put the case on hold until the Galloway case could be decided. Now that it is decided, the court has added Elmbrook to its May 15 private conference and may hear arguments in the case in its October 2014 term.
The issue in Elmbrook is whether the public high school graduation at a church adorned with religious symbols violates the establishment clause. The court has been asked to review the Seventh Circuit’s decision that there was a violation based on both the coercion and endorsement tests. This case will probably be the first of many school-based establishment-clause issues to find their way into federal courts now primed with Town of Greece v. Galloway as precedent. Other simmering issues, from “under God” in the Pledge of Allegiance to religious-based anti-discrimination laws for schools, are likely to gain high profiles in the near future.