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Bar News - June 18, 2014


Municipal & Governmental Law: SCOTUS Upholds NY Town’s Practice of Prayer at Meetings

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Town Prayer: Keeping It Constitutional
Whether a town is considering instituting prayer at town meetings or a litigant is challenging an existing practice, several points regarding the lawfulness of the practice should be kept in mind, including:
Initial considerations
Towns should consider whether the costs and efforts of adopting, executing and monitoring such a practice (including defending lawsuits) will detract from the effective operation of its board. This is especially true in smaller municipalities with fewer resources.

Municipalities should take any required steps to ensure they have adequate personnel to oversee the practice and that staff is properly instructed on the lawful parameters.
Inviting and scheduling speakers
Invocation opportunities must be open to all, including atheists, other non-believers, and faiths representing only a minority of a municipality’s citizens.

Towns should not create or use only “short lists” of those who previously agreed to officiate.

Municipalities may wish to post their inclusive policy on their websites and announce it at the start of town meetings.

Towns do not have to recruit speakers outside their borders to ensure diversity.
Establishing and enforcing speaking guidelines
Speakers cannot use their opportunity at town meetings to either expressly promote their faith or denigrate another’s (i.e., no threats of damnation/hellfire or preaching conversion).

Towns can allow sectarian or encourage ecumenical prayer, which is more inclusive.

A municipality may set a reasonable time restraint or word count, as long as all speakers are treated equally.
Organizing and running the meeting
The invocation should be scheduled for the start of the meeting (during the administrative portion) and not during public adjudicatory hearings.

All meeting attendees should be free to enter or leave the room during the invocation portion of the meeting.

Town boards cannot adjudicate for or against a party before it, based on that party’s participation/non-participation in the invocation (nor may they suggest that participation will be taken into account.)
Longer-term planning:
If prayer is going to be a regular part of town meetings, it should be reflected in the policies and procedures of any boards incorporating the practice.

In Town of Greece v. Galloway, the US Supreme Court last month ruled that a New York town did not violate the Establishment Clause of the First Amendment by starting its board meetings with prayer offered by volunteer citizens.

Legal pundits followed the case, because an order to the contrary could have effectively halted long-standing governmental practices – for example, both the US House and Senate start each legislative day with a prayer.

Because of the publicity the case received, attorneys may be asked to opine whether the practice of prayer at town meetings is permissible. To effectively address such a request, practitioners will need to consider not only whether the requirements of Greece and the US Constitution are met, but also those of the state constitution. They should also take into account each town’s unique needs and resources.

The background of the Greece matter is relatively straightforward. A town supervisor thought it would be inspiring for Greece’s board meetings to start with the same kind of blessing/prayer he enjoyed as a state legislator. The town, working from a “Community Guide” it obtained from the local Chamber of Commerce, called religious organizations listed there and invited them to open local board meetings with a moment of prayer.

Over time, Greece eventually developed a “short list” of those to call, based on who had previously agreed to speak. There were no indications of any intentional exclusion, nor did the town attempt to moderate the content of the prayers.

Greece was sued by attendees “offended” by predominantly Christian prayer-givers. After the suit was lodged, the town actively sought out other denominations, inviting Wiccans, Buddhists, and others to also lead prayers.

The federal district court found for Greece. On appeal, the Second Circuit reversed. Certiorari was granted and the US Supreme Court found for the town.

The Supreme Court relied heavily on its 1983 decision in March v. Chambers. There, it had previously found that the Establishment Clause was not violated when the Nebraska Legislature hired a minister with public funds to lead prayers frequently containing explicitly Christian themes at the start of state legislative assemblies. The Supreme Court noted that the history of prayer at legislative assemblies could be traced back to the Framers of the US Constitution. It found no need to “define the precise boundaries” of the Establishment Clause where history showed that a particular practice was permitted.

The Greece Court pointed out that where it came to prayer at town meetings, “offense” at, disagreement with, or “intolerability” over the practice was not the same as “coercion.” It noted that the required Constitutional analysis was a fact-sensitive inquiry using a “reasonable observer” standard and considering factors such as the setting of the prayer and its audience.

The Court emphasized that an Establishment Clause violation was not made out any time a person experienced a sense of affront from the expression of contrary religious views in a legislative forum. It also noted that a one-time offense does not “despoil the practice” and is insufficient to set up a cause of action. Rather, a pattern of violation is required.

The Greece holding is limited to situations where a violation of the Establishment Clause is alleged; it does not address a situation where a petitioner claims that prayer at town meetings violates the state constitution.

In New Hampshire, the state constitution provide at least the same protections as the federal one. That’s why New Hampshire courts do not perform a separate federal analysis when looking at alleged violations of both the federal and state constitutions. However, because states can adopt additional protections under their own constitutions, situations exist where there could be a state constitutional violation even though there is no federal one.

For this reason, New Hampshire practitioners analyzing the constitutionality of a town’s existing or proposed prayer practice need to do more than just consider Greece and Marsh. They also need to parse the language of Article 6 of the New Hampshire Constitution, “Morality and Piety,” which provides that “… every person, denomination or sect shall be equally under the protection of the law; and no subordination of any one sect, denomination or persuasion to another shall ever be established.”
Prayers in Vermont
While there is no New Hampshire Supreme Court decision directly on point, Granite State practitioners should be aware of how Vermont has addressed a similar practice, albeit at the lower court level.

In Hackett v. Town of Franklin, No. 77-11 (Ver. Super. Ct., filed May 29, 2012), a trial court found that having prayer at town meetings was “compelling the citizen to attend religious worship,” in violation of express language in Vermont’s constitution. The Hackett opinion was fact-specific. Also, the relevant language in Vermont’s constitution differs significantly from that of New Hampshire’s.

Under Greece, towns may utilize prayer for ceremonial purposes in public meetings, within certain parameters, without violating the Federal Constitution. Practitioners involved in developing or challenging such a practice in a New Hampshire community will need to turn to both the federal and state constitution in determining the lawfulness of the municipality’s actions.


Lynne Guimond Sabean is an attorney at Boutin & Altieri, PLLC, practicing out of the firm’s Meredith and Londonderry offices. She thanks Edmund J. Boutin and Kieran G. Altieri for their assistance in reviewing this article and sidebar.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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