In the

Supreme Court of the United States

TOWN OF GREECE, Petitioner,

v.

SUSAN GALLOWAY AND LINDA STEPHENS, Respondents.

 

 

BRIEF FOR RESPONDENTS

INTRODUCTION

This case is not about the ability of legislators to acknowledge God or seek divine guidance. It is about the right of citizens to participate in local government without being required to participate in sectarian prayers.

Petitioner and the United States insist that this case is controlled by Marsh v. Chambers (1983). But the prayers before the Greece Town Board differ in fundamental ways from the prayers before a state legislature. The prayers in Greece are directed at citizens who have little choice but to attend Board meetings-to seek zoning changes, business permits, or Board action on local issues; to take the oath of office; or to receive public honors. The prayers, moreover, are not inclusive: the vast majority has been explicitly Christian; they are sectarian, in that they specify details on which believers in God are known to disagree. Citizens face undeniable pressure to participate in these prayers, presenting religious minorities with the untenable choice of betraying their conscience or visibly dissenting from majoritarian religious norms.

It is fundamental that government may not press citizens to participate in religious exercises. And whether or not Congress may sponsor sectarian prayers for those of its members who choose to participate-a question that Marsh did not decide-government may not direct explicitly sectarian or proselytizing messages at the broader citizenry. The practice in Greece violates both of these principles.

STATEMENT

A. Board Meetings

The Greece Town Board is the "most important part of Town government." It exercises legislative, executive, and administrative powers.

At its monthly public meetings, Board members, the Town Clerk, the Chief of Police, and Directors of seven other departments sit on a dais. Hardly anyone remains anonymous. Average attendance is modest: one witness guessed ten; another, less than ten. One official testified that in her seven years of regular attendance, only one or two meetings drew more than fifty people. Board members routinely engage citizens in conversation.

Both adults and children attend meetings, not just as observers, but as participants - often at the Board's invitation or direction. At each meeting, the Board conducts a public forum in which citizens raise concerns and complaints. At almost all meetings, the Board also conducts public hearings at which applicants request zoning changes or special-use permits that the Board has discretion to grant, modify, or deny. Citizens also attend to receive awards for civic accomplishments, to be sworn in as municipal employees, and to fulfill a high-school civics requirement.

1. Award ceremonies

Approximately 40% of Board meetings include an award ceremony. These ceremonies occur immediately after the prayer. Board members and department heads join the honorees at the front of the room. Supervisor Auberger makes remarks and reads a proclamation; the honorees may make a statement or presentation; and the ceremony concludes with applause.

For example, a man was honored for maintaining a home that received the Town's first local-landmark designation; a women's choir was honored for its achievements and sang for the audience; and eight individuals were honored for founding the local little league.

2. Oaths of office

Many Board meetings include oath ceremonies for new police officers or other new Town employees. Oath ceremonies follow award ceremonies; if there is no award ceremony, the oath ceremony immediately follows the prayer. Board meetings are the only venue for these ceremonies..

New police officers are typically joined by police officials, other officers, and family members, including children. You know we make a big deal out of swearing the police officers in and making a big public display, but it's very important to us. These are the officers that citizens are going to see out there every day-risk their lives, do the job.

3. Petitioning the Board

Citizens address the Board in two parts of its meetings: the public forum and public hearings. Citizens request official Board action; they petition for redress of grievances. The meetings are a citizen's only opportunity to address the Board as a body.

a. Public Forum. In the public forum, citizens address the Board on a wide range of municipal issues over which the Board has authority. They must state their name and address. They ask the Board to act on matters that directly affect their lives. The parents of a child with Down syndrome argued in support of a proposed group home; a wheelchair-bound man asked for better accommodations for the disabled; a citizen opposed the construction of a Wal-Mart; and citizens asked the Board to address criminal activity in their neighborhoods and to ameliorate traffic congestion. Sometimes these comments yield immediate results, with Supervisor Auberger promising to address the problem.

When there is no award or oath ceremony, the public forum immediately follows the prayer; if no one steps to the microphone, the forum closes in under a minute.

b. Public Hearings. Approximately 90% of Board meetings include at least one public hearing. A citizen seeking to rezone property or to obtain a special-use permit to open a small business must appear before the Board for a hearing. All owners of property within 500 feet of the applicant's property are notified of the hearing. The Board may approve, modify, or deny applications in its broad discretion. Many kinds of businesses are subject to these rules.

At the hearing, the applicant presents a summary of his request; the Board takes comments from supporters and opponents; and Board members question the applicant about the proposed business and about concerns that other citizens have raised.

Hearings typically begin thirty minutes after the meeting starts. If the Board has not completed its other agenda items, it interrupts the meeting for the hearing.

4. Children's participation

High-school students attend Board meetings to receive up to three hours' credit toward a participation-in-government requirement. They must obtain an official's signature verifying their attendance and write a summary of the meeting for their teacher. Supervisor Auberger and others on the dais regularly instruct these students about the proceedings.

The Board routinely gives awards to groups of schoolchildren, who are joined by coaches, teachers, or other authority figures. The Board honored a squad of middle-school cheerleaders, who performed a routine for the audience. It recognized a successful girls' soccer team, bringing its coach to tears. A boys' baseball team was honored for representing Greece in a tournament.

Individual children have been honored for, among other things, academic achievement, volunteerism, and saving people's lives

The Board has also honored youths from an Explorer Post sponsored by the Greece Police Department; a police-department official described their accomplishments.

Children also petition the Board in the public forum. A 14-year-old argued against a proposed athletic complex; and a group of students-accompanied by teachers and school administrators-thanked the Board for addressing traffic-safety issues at their school.

Children are regularly invited to lead the Pledge of Allegiance. Sometimes, the same children lead the Pledge immediately before the prayer and are honored immediately after. At one of these meetings, a children's group led the Pledge from the front row; as they took their seats, the guest chaplain was summoned to lead the prayer; and as the chaplain walked away from the podium, Supervisor Auberger addressed the children. All of this happened in a matter of minutes, with a row of police officers at the back of the room awaiting an oath ceremony.

B. Petitioner's Sectarian Prayers

Historically, the Town opened its Board meetings with a moment of silence. When Supervisor Auberger was elected in 1999, he began opening meetings with a prayer instead. Initially, Auberger himself delivered the prayers. After a few months, the Board started inviting a "chaplain of the month" to do so.

Supervisor Auberger summons the guest chaplain to deliver "our prayer" (or "our moment of prayer") from a podium that bears the Town seal and sits just below the dais. When delivering the prayer, the chaplain faces the assembled citizens, his back to the Board.

Petitioner gives its guest chaplains no guidelines to discourage sectarian, proselytizing, or disparaging prayers. When asked at his deposition whether the Town would permit, for example, prayers lamenting "the evils of homosexuality" or imploring "our white Lord Jesus, to grant peace to the white residents of Greece but not the blacks or Jews or homosexuals or other perverts," Supervisor Auberger said over and over that "We do not control the content of the prayer."

Approximately two-thirds of petitioner's prayers have referenced "Jesus," "Christ," ''Your Son," or the "Holy Spirit." In the eighteen months before the record closed, 85% contained such references. Even in 2008-the year this lawsuit was filed, and the only year to include non-Christian chaplains -a majority of prayers were explicitly Christian.

Many prayers have included extended statements of Christian doctrine. For example, one guest chaplain stated:

We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. Jesus Christ, who took away the sins of the world, destroyed our death, through his dying and in his rising, he has restored our life. Blessed are you, who has raised up the Lord Jesus, you who will raise us, in our turn, and put us by His side.

On another occasion, this chaplain spoke of Spring as "an expressive symbol of the new life of the risen Christ," and said that the "Holy Spirit continues to be the inspiration and the source of strength and virtue, which we all need in the world of today." Another chaplain spoke of "the plan of redemption that is fulfilled in Jesus Christ", and on another occasion spoke of "the life and death, resurrection and ascension of the Savior Jesus Christ". Other guest chaplains read and explained biblical passages, and extolled God's having sent his son Jesus Christ into the world.

Guest chaplains regularly assume that everyone present is Christian. They speak of "our Christian faith", "us as Christian people", and "the role of the Holy Spirit in our lives". They speak for the group: "We ask it all in the name of Jesus Christ, our savior", and "We look with anticipation to the celebration of Christmas and the birth of Jesus Christ". They pray for "the members of our community who come here to speak before the board", and "everybody that will partake in this gathering". Sometimes they pray by name for citizens scheduled to participate in the meeting.

Many chaplains request that all present "join" in the prayer. "Let's join our hearts together right now, and ask the Lord's blessing on our time together here tonight. Father, in Jesus' name we just invite you * * *".

One chaplain called on everyone to recite the "Our Father" together. Others call for citizen participation in ways that highlight nonparticipants, asking citizens to stand or ''bow our heads out of respect to God. Board members have made similar requests. Board members routinely bow their heads, stand, respond "Amen," or make the sign of the cross.

Chaplains have disparaged those who question petitioner's prayer practice, or who are not "Godfearing." One said, "despite the objections of some, they are in the minority and they are ignorant of the history of our country." Another chaplain thanked the Board for opening with prayer "[o]n behalf of all God-fearing people in this town." Still another impugned towns that lack "God-fearing" leaders.

In addition to thanking guests for serving as the Town's "chaplain of the month," Auberger has thanked them for serving as the chaplain for the Greece Police Department. Auberger's gratitude has been extended on behalf of both the Board and Town residents. And he has at times presented guest chaplains with a plaque to commemorate their service.

The Town's Haphazard Selection Process

1. Before the threat of litigation

For nine years, from the beginning of petitioner's prayer practice until just before this lawsuit was filed in February 2008, every guest chaplain, and every person on petitioner's lists of potential chaplains, was a Christian clergyman.

Employees assigned to schedule chaplains were told to "call a pastor", but received no other guidance. They compiled multiple, overlapping, and disorganized lists of clergy. They called pastors off these lists "in no particular order, in no particular fashion", with no "rhyme or reason". When the scheduler had trouble finding someone or when someone canceled, she turned to a handful of reliable "standby" pastors who would "come in a heartbeat"; this happened "a lot. Some pastors appeared eight, nine, or fourteen times; others, only once.

2. After the threat of litigation

In 2007, respondents' counsel wrote to question petitioner's prayer practice. As litigation approached and then ensued, petitioner found three non-Christians, who delivered a total of four prayers.

A Jewish layman, who was a Board member's friend, was asked to deliver the prayer in January 2008. After the lawsuit was filed in February, a Wiccan Priestess read press reports and asked to deliver a prayer; she did so in April. In July, the Jewish layman delivered a second prayer. The Town added the local Baha'i Temple to its list on its own initiative, but only after the lawsuit was filed. The Temple's leader gave the prayer in December. These three individuals are the only non-Christians ever to deliver a prayer-and they all did so in 2008, the year that the litigation began.

After discovery closed in October 2008, the prayer scheduler promised in a January 2009 summary-judgment filing that she would start a rotation system: "I will start from the top, and work my way down to the bottom of the list. Where I stop one month, I will start the following month." Of the fifty-four names on the list accompanying her filing, the only non-Christians were the three who prayed in 2008.

Still later, petitioner filed a chaplain list with almost forty new entries, including a local Buddhist Temple and over a dozen Jewish groups-several of which appear to be cemeteries. Many of the new entries shared the same address, and almost all lacked phone numbers.

These alleged reforms led to nothing. From January 2009 until the record closed in June 2010, no non-Christian gave the prayer. Nor did the Town call chaplains in rotation. Two Christian pastors made repeat appearances, and chaplains did not appear in anything resembling the order in which they appeared on the Town's lists.

Petitioner says that "any citizen" can volunteer to deliver a prayer. But petitioner never publicized any such opportunity. Even when litigation was imminent, Supervisor Auberger and the Town Attorney said that the practice was to have a prayer by "a member of the local clergy" and "our invited clergy".

D. The Plaintiffs

Respondents are a Jew and an atheist who have regularly attended Board meetings. They have done so to address specific local issues-such as the public-access cable channel and the use of local parks-and have spoken during the public-forum period about these issues and about the prayer practice.

They have felt coerced by guest chaplains' requests to participate in the prayers, and they have felt isolated, embarrassed, and humiliated when they have declined to participate while those around them stared. When respondents complained to Town officials in September 2007, they were told either to leave the room or to ignore the prayers. The following month, the guest chaplain said that they were "in the minority and they [we]re ignorant of the history of our country."

E. Proceedings Below

The district court held, on cross-motions for summary judgment, that respondents had standing; that respondents had not proven intentional discrimination against non-Christians in selecting chaplains; and that petitioner's prayer practice did not violate the Establishment Clause. Respondents appealed the last ruling, arguing that the prayers and chaplains were overwhelmingly Christian, and that adults and children were pressured to participate in the prayers.

After considering the "totality of the circumstances", a unanimous panel of the Second Circuit held that petitioner had affiliated itself with a single religion, in violation of Marsh.

The court observed that "[w]e need not 'embark on a sensitive evaluation' or 'parse the content of a particular prayer,' * * * to recognize that most of the prayers at issue here contained uniquely Christian references." "[T]he town did not explain that it intended the prayers to solemnize Board meetings, rather than to affiliate the town with any particular creed," and did not request that chaplains avoid proselytizing or disparaging remarks. Petitioner's litigating position-that it would accept volunteers of any faith-was undercut by its failure ever to announce such a policy and by its reliance on "a cadre of recurrent volunteers." Its process "virtually ensured a Christian viewpoint." Under those circumstances, "the rare handful of cases, over the course of a decade, in which individuals from other faiths delivered the invocation cannot overcome the impression, created by the steady drumbeat of often specifically sectarian Christian prayers, that the town's prayer practice associated the town with the Christian religion."

The court also considered the context of the prayers, noting Board members' participation, the chaplains' delivery of prayers on everyone's behalf, and the requests for audience participation-all of which "placed audience members who are nonreligious or adherents of non-Christian religion in the awkward position of either participating in prayers invoking beliefs they did not share or appearing to show disrespect for the invocation." The court concluded that petitioner "conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them."

The court remanded to allow the district court, "with the assistance of the parties, to craft appropriate relief."

SUMMARY OF ARGUMENT

I. Petitioner's prayer practice is unconstitutional for two independent but mutually reinforcing reasons. It puts coercive pressure on citizens to participate in the prayers, and those prayers are sectarian rather than inclusive.

"It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise." Petitioner's practice violates this basic guarantee. Citizens attend meetings not as observers, but as participants. Some must attend to request special-use or rezoning permits or Board action on other issues; others attend to be sworn in to office, to be publicly honored, or to fulfill an educational requirement. Citizens' attendance is not voluntary in any meaningful sense.

The Town asks clergy to deliver prayers on its behalf, but it does so without attending to any of its Establishment Clause responsibilities. It does not ask its guest chaplains to refrain from asking citizens to join in the prayers, and it takes no steps to ameliorate the coercion faced by those in attendance. Religious minorities are pressed either to feign participation in an act of worship that violates their own beliefs, or to publicly display their dissent from majoritarian religious norms.

Petitioner does not ask its guest chaplains to avoid proselytizing or disparaging remarks, let alone to pray in an inclusive manner. With no instruction to do otherwise, petitioner's guest chaplains routinely offer prayers acceptable only to Christians.

Petitioner's practice cannot find refuge in a tradition of governmental religious acknowledgments. "[O]ur constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington, * * * down to the present day," "rule [s] out of order government-sponsored endorsement of religion * * * where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ)."

Pairing coercion with sectarian prayers makes the Town's practice doubly unconstitutional. Government "may not thrust any sect on any person." Forcing religious minorities either to participate in Christian prayer or to visibly withdraw "puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed."

Marsh did not approve prayers in a coercive environment; no coercion was alleged or apparent. Legislators were free to come and go with little comment; citizens were mere observers, confined to the gallery. Even then, the only prayers that Marsh considered and approved were nonsectarian and not "explicitly Christian." Petitioner and its amici seek to extend Marsh far beyond what it actually decided.

II. Requiring petitioner to avoid obviously sectarian prayers would not require difficult religious judgments, impermissible "parsing" of prayers, or censorship of private speech. Any possible difficulty categorizing "King of Kings" does not make it difficult to categorize "Jesus Christ"; the prayers in this record are unambiguous. And government does not engage in censorship when it delegates the task of delivering a governmental prayer according to its own specifications.

III. The cumulative effect of petitioner's positions is astounding. Petitioner claims that government may endorse not just religion in general, but tenets of particular religions. Pet. Br. 41. Any limitation on the content of prayers would be unconstitutional. Only "legal sanctions" count as coercive, leaving government officials and guest chaplains free to admonish and harangue citizens to participate in sectarian prayers-even those that promise eternal hellfire to religious minorities.

This license would extend to all three branches of government. It would apply not only to the Greece Town Board, but to agency hearings and criminal trials. Indeed, under petitioner's proposed test, a parole officer could urge a parolee to accept Jesus Christ as his Savior and a caseworker could browbeat a welfare recipient for not attending church.

Petitioner is no longer arguing that prayer is permitted in legislatures; it is arguing that government is free to impose religious exercises of any kind in any context, provided that it does not fine or jail people or withhold benefits for resisting. Its position is irreconcilable with this Court's decisions and with any reasonable conception of religious liberty or freedom of conscience.

CONCLUSION

The judgment should be affirmed and the case remanded for implementation of an effective remedy.