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.)
This is exactly the kind of micromanagement of belief that the court wanted to avoid when it declined to get involved with vetting the substance of individual prayers before legislative sessions. Instead we will just vet the substance of the individual religion. Moreover, the town’s representation to the high court that anyone—including an atheist—could lead the town prayers in Greece starts to look like a bait and switch when the town reserves the right to define which religions are legitimate. Officials “said they’re open to anybody,” Barry Lynn, executive director of Americans United for the Separation of Church and State, told Politics USA. “Now they’re not open to anybody. It’s really a scam.” According to Americans United, the new policy is in fact more restrictive than the old, unwritten rule, in that of the four non-Christians who were allowed to deliver an opening invocation since the sectarian prayer practice was adopted in 1999, only one would qualify under the new rules.
But credit where credit is due: Not everyone is enacting policies as completely ambiguous and subjective as the new rules in Greece. Last week, the board of commissioners in Brevard County, Florida, erased all doubt when they openly voted to prevent atheists from delivering invocations before their town meetings. The board specifically refused to include an invocation from an atheist on the theory that “the prayer is delivered during the ceremonial portion of the county’s meeting, and typically invokes guidance for the County Commission from the highest spiritual authority, a higher authority which a substantial body of Brevard constituents believe to exist.”
Elsewhere in the wake of Town of Greece v. Galloway, the school board of Pickens County, South Carolina, is contemplating reverting to a policy allowing sectarian prayer before all school board meetings. This despite the fact that two federal appellate courts have concluded that the First Amendment bars school boards from legislative prayers—sectarian or otherwise. Forsyth County, North Carolina, is also trying to reinstate a policy allowing sectarian clergy to pray freely after Greece. In Huntsville, Alabama, the open, inclusive legislative prayer policy was deemed not to include Wiccans, whose representative, Blake Kirk was disinvited from solemnizing a town council meeting “because of phone calls from citizens alarmed about Kirk's faith.” (Evidently the citizens had “the collywobbles,” according to Kirk, a phrase so awesome it kind of makes me want to become a Wiccan myself.) And who can forget the board of supervisors in Chesterfield County, Virginia, which briefly flirted with the post-Greece notion of limiting prayers at meetings to those delivered by “ordained religious leaders of monotheistic religions” but has now settled on a new policy that would have the invocation rotate among the supervisors themselves (which raises its own First Amendment questions).
All of this mayhem might explain why the town of Amherst, Virginia, voted this week to stick with the good old moment of silence, despite the Supreme Court’s invitation to go back to sectarian prayer. The only people who can be sure that their prayers are being answered around the country are attorneys.
Justice Antonin Scalia himself made it clear early this summer that he believed the court’s ruling in Town of Greece opened the door to constitutional acceptance of things like graduation ceremonies held in churches and a brand new test for all Establishment Clause challenges. The majority of his colleagues seem to disagree. In other words, even the justices themselves are not sure exactly what they decided about the First Amendment in the Greece case.
Proponents of sectarian public prayer in council meetings and schools have argued that atheists, Wiccans, satanists, and spaghetti monsters were emboldened by the Greece ruling to push their fake religions out into the town square and that is precisely why the town of Greece, and jurisdictions around the country, are now codifying their laws to fence out those objectors. Of course the other possibility is that the decision in Town of Greece emboldened religious majorities all around the country to put into writing that which they used to only tacitly admit: that some religions are more equal than others and that we can readily distinguish between the real and fake religions, simply by putting it to a vote.