When last we left the town of Greece, New York, the Supreme Court had just blessed its legislative prayer policy, announcing that expressly sectarian prayer, which persisted over many years, prior to town council meetings does not violate the storied tradition of nonsectarian legislative prayer and is therefore acceptable under the First Amendment. Since that sunny week in May, the town of Greece has been confronted by many well-meaning applicants from across the country, seeking a chance to be the legislative chaplain. This list of supplicants evidently included “someone who wanted to sacrifice a small animal, a man identifying himself as the devil, and a representative of a movement calling itself the Church of the Flying Spaghetti Monster.” So great was the clamor to lead worship in Greece that the town decided last week to enact a formal, written prayer policy to determine who could lead prayers and who could not.
The new prayer policy limits the invocation before public meetings to individuals who represent “assemblies with an established presence in the town of Greece that regularly meet for the primary purpose of sharing a religious perspective.” The “leader” or “appointed representative” of religious assemblies from outside the town of Greece may also lead prayers, but only if at least one resident of Greece is a member of his or her congregation and specifically asks in writing. Issues around the legitimacy of any one religious assembly will be resolved by the town clerk, who is tasked with determining whether an organization would qualify for 501(c)(3) status. Finally the policy states that the town clerk will compile an annual list of “all ‘churches,’ ‘synagogues,’ ‘congregations,’ ‘temples,’ ‘mosques’ or other religious assemblies in the Town of Greece.” The new rules are explicitly based on a model policy from the Alliance Defending Freedom, the legal group that represented the town at the high court last year.
It sounds fairly thorough. But by this new standard, the rules seem to screen out atheists, such as Dan Courtney, who delivered the invocation in July, both because he does not live in the town of Greece proper nor does he belong to any assembly of atheists that meets there. But even if he did, it is unclear whether groups of atheists qualify as “assemblies with an established presence in the town of Greece that regularly meet for the primary purpose of sharing a religious perspective.” Indeed Courtney would likely say that the whole point of atheism is to not meet for the primary purpose of eschewing a religious perspective.
The policy itself notes that “our country’s Founders recognized that we possess certain rights that cannot be awarded, surrendered, nor corrupted by human power, and the Founders explicitly attributed the origins of these, our inalienable rights, to a Creator.” That certainly suggests that only Creator-based faiths need apply.
Town Attorney Brian Marianetti contends that the new policy is not intended to limit prayers based on religious affiliation but, rather, to screen out potential chaplains based on geography and to limit them to "legitimate, established assemblies.” He told the Washington Post this week, however, that he didn’t know whether atheists would be permitted to give an invocation under the rules: “I can’t say one way or another,” he said. Each speaker will be “decided on a case-by-case basis.”
The issue is complicated by the fact that the town of Greece once promised the high court that the town would include prayers from both atheists and people who don’t worship collectively. That promise, in fact, was the basis for the court’s 5–4 holding in the case. Writing for the majority, Justice Anthony Kennedy expressly noted that the town had “represented that it would welcome a prayer by any minister or layman who wished to give one” and that “a minister or layperson of any persuasion, including an atheist, could give the invocation.” The new rules seem to suggest that this is no longer true and that the town government is poised to engage in a case-by-case inquiry into which religions (and nonreligions) meet and pray in a manner that comports with the town clerk’s view of a legitimate faith. (It was the town clerk’s view of what constituted a legitimate faith that got Greece into trouble with the courts in the first place.)