Is the Invocation Before a Meeting of the Elders in Greece Ceremonial Deism?

OK, I admit that this post's title might be misleading.  But that's the joy of New York State geography: a plethora of Old-World names for municipalities.

Today, the U.S. Supreme Court heard oral argument in an interesting First Amendment case with local roots.  In Galloway v. Town of Greece, 681 F.3d 20, 33 (2d Cir. 2012) cert. granted, 133 S. Ct. 2388, 185 L. Ed. 2d 1103 (U.S. 2013), the Second Circuit reversed a lower court ruling in favor of the Town of Greece, NY (just outside of Rochester), finding that the totality of the circumstances in this case showed that the town violated the establishment clause of the First Amendment, in that the mostly-Christian prayers before town board meetings were “an endorsement of a particular religious viewpoint. This conclusion is supported by several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials.”  The Second Circuit distinguished the leading case of Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983) (an earlier case where the Supreme Court held that a chaplain’s prayer before the start of a state legislative session was not unconstitutional), and took pains to dissuade legislators from the “risks [of] establishing a [nonsectarian] 'civic religion'.”

The somewhat confusing Second Circuit decision in this case (throwing up their hands in not applying any particular judicial test, but looking at the “totality of the circumstances”), amply illustrates the inherent tension between each prong or clause of our First Amendment.  On the one hand, our Constitution preserves freedom of expression [every citizen has the right to his or her own religious beliefs and to express them peacefully] and, on the other hand, non-establishment of religion [no government may establish an official state or municipal religion].  At their extreme boundaries these concepts are clear opposites, but over generations (with a byzantine smorgasbord of Supreme Court tests and rulings on each prong during that time), courts are now being asked to decide at what point good faith expression of religious sentiment in a public forum, in fact impermissibly establishes a particular sect as that municipality’s (or school’s or state’s) religion.  One could argue that, like the state legislature in Marsh, the Town of Greece could draw the proper line by banning any specifically-Christian (or other sectarian) content in the invocation, but then, the Second Circuit cautions, the Town would still run afoul of the Constitution by establishing a neutral “civic religion” (and, ostensibly, offending the rights of belief and free expression of the minister at issue).

So what is a municipality to do?  Of course, no government needs to have a prayer or invocation before an official meeting or event.  However, many people (even those in government) may find it pleasant to “solemnize[e] an event and recognize[e] a shared religious history”.  Even though I am, in fact, a member of a religious minority, I don’t personally find any Constitutional problem with such neutral, non-denominational, expressions of public solemnity at government events.  Personally, I have always respected Justice Sandra Day O’Connor’s “middle path” between the two prongs of the First Amendment, whereby she created (or at least championed) the concept of “ceremonial deism”.  As she explained most cogently in her concurring opinion in Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 37, 124 S. Ct. 2301, 2323, 159 L. Ed. 2d 98 (2004):

Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as The Star–Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). ... These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all. ... However, “[O]ne of the greatest dangers to the freedom of the individual to worship in his own way [lies] in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.” ... Because of this principle, only in the most extraordinary circumstances could actual worship or prayer be defended as ceremonial deism. We have upheld only one such prayer against Establishment Clause challenge, and it was supported by an extremely long and unambiguous history. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (upholding Nebraska Legislature's 128–year–old practice of opening its sessions with a prayer offered by a chaplain). Any statement that has as its purpose placing the speaker or listener in a penitent state of mind, or that is intended to create a spiritual communion or invoke divine aid, strays from the legitimate secular purposes of solemnizing an event and recognizing a shared religious history.

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 39-40, 124 S. Ct. 2301, 2324, 159 L. Ed. 2d 98 (2004)

Taking this concept outside of the religious realm, consider many of our municipal Independence Day parades where participants (maybe even government workers) sometimes dress up like 18^th Century Patriots, such as George Washington or Ben Franklin.  Does their costuming mean that they endorse the tarring and feathering of Englishmen?  Does it mean that the town or county supports slavery (as President Washington was a slave owner)?  I would say not; it’s merely a traditional mode of recognizing our nation’s history in struggle against the British Empire, with no deeper meaning.

Nevertheless, under the standards articulated by Justice O'Connor a decade ago, the predominantly Christian prayers at issue in Galloway v. Town of Greece might still fail constitutional muster, but a kind of “neutered” invocation cautioned against by the Second Circuit should not.