Town of Greece v. Galloway

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TOWN OF GREECE, NEW YORK v. GALLOWAY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 12–696. Argued November 6, 2013—Decided May 5, 2014
Since 1999, the monthly town board meetings in Greece, New York,
have opened with a roll call, a recitation of the Pledge of Allegiance,
and a prayer given by clergy selected from the congregations listed in
a local directory. While the prayer program is open to all creeds,
nearly all of the local congregations are Christian; thus, nearly all of
the participating prayer givers have been too. Respondents, citizens
who attend meetings to speak on local issues, filed suit, alleging that
the town violated the First Amendment’s Establishment Clause by
preferring Christians over other prayer givers and by sponsoring sec-
tarian prayers. They sought to limit the town to “inclusive and ecu-
menical” prayers that referred only to a “generic God.” The District
Court upheld the prayer practice on summary judgment, finding no
impermissible preference for Christianity; concluding that the Chris-
tian identity of most of the prayer givers reflected the predominantly
Christian character of the town’s congregations, not an official policy
or practice of discriminating against minority faiths; finding that the
First Amendment did not require Greece to invite clergy from con-
gregations beyond its borders to achieve religious diversity; and re-
jecting the theory that legislative prayer must be nonsectarian. The
Second Circuit reversed, holding that some aspects of the prayer pro-
gram, viewed in their totality by a reasonable observer, conveyed the
message that Greece was endorsing Christianity.
Held: The judgment is reversed.
681 F.3d 20, reversed.
JUSTICE KENNEDY delivered the opinion of the Court, except as to
Part II–B, concluding that the town’s prayer practice does not violate
the Establishment Clause. Pp. 6–18.
2 TOWN OF GREECE v. GALLOWAY
Syllabus
(a) Legislative prayer, while religious in nature, has long been un-
derstood as compatible with the Establishment Clause. Marsh v.
Chambers, 463 U.S. 783, 792. In Marsh, the Court concluded that it
was not necessary to define the Establishment Clause’s precise
boundary in order to uphold Nebraska’s practice of employing a legis-
lative chaplain because history supported the conclusion that the
specific practice was permitted. The First Congress voted to appoint
and pay official chaplains shortly after approving language for the
First Amendment, and both Houses have maintained the office virtu-
ally uninterrupted since then. See id., at 787–789, and n. 10. A ma-
jority of the States have also had a consistent practice of legislative
prayer. Id., at 788–790, and n. 11. There is historical precedent for
the practice of opening local legislative meetings with prayer as well.
Marsh teaches that the Establishment Clause must be interpreted
“by reference to historical practices and understandings.” County of
Allegheny v. American Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U.S. 573, 670 (opinion of KENNEDY, J.). Thus, any test
must acknowledge a practice that was accepted by the Framers and
has withstood the critical scrutiny of time and political change. The
Court’s inquiry, then, must be to determine whether the prayer prac-
tice in the town of Greece fits within the tradition long followed in
Congress and the state legislatures. Pp. 6–9.
(b) Respondents’ insistence on nonsectarian prayer is not con-
sistent with this tradition. The prayers in Marsh were consistent
with the First Amendment not because they espoused only a generic
theism but because the Nation’s history and tradition have shown
that prayer in this limited context could “coexis[t] with the principles
of disestablishment and religious freedom.” 463 U.S., at 786. Dic-
tum in County of Allegheny suggesting that Marsh permitted only
prayer with no overtly Christian references is irreconcilable with the
facts, holding, and reasoning of Marsh, which instructed that the
“content of the prayer is not of concern to judges,” provided “there is
no indication that the prayer opportunity has been exploited to prose-
lytize or advance any one, or to disparage any other, faith or belief.”
463 U.S., at 794–795. To hold that invocations must be nonsectarian
would force the legislatures sponsoring prayers and the courts decid-
ing these cases to act as supervisors and censors of religious speech,
thus involving government in religious matters to a far greater de-
gree than is the case under the town’s current practice of neither ed-
iting nor approving prayers in advance nor criticizing their content
after the fact. Respondents’ contrary arguments are unpersuasive.
It is doubtful that consensus could be reached as to what qualifies as
a generic or nonsectarian prayer. It would also be unwise to conclude
that only those religious words acceptable to the majority are permis-
Cite as: 572 U. S. ____ (2014) 3
Syllabus
sible, for the First Amendment is not a majority rule and government
may not seek to define permissible categories of religious speech. In
rejecting the suggestion that legislative prayer must be nonsectarian,
the Court does not imply that no constraints remain on its content.
The relevant constraint derives from the prayer’s place at the open-
ing of legislative sessions, where it is meant to lend gravity to the oc-
casion and reflect values long part of the Nation’s heritage. From the
Nation’s earliest days, invocations have been addressed to assemblies
comprising many different creeds, striving for the idea that people of
many faiths may be united in a community of tolerance and devotion,
even if they disagree as to religious doctrine. The prayers delivered
in Greece do not fall outside this tradition. They may have invoked,
e.g., the name of Jesus, but they also invoked universal themes, e.g.,
by calling for a “spirit of cooperation.” Absent a pattern of prayers
that over time denigrate, proselytize, or betray an impermissible gov-
ernment purpose, a challenge based solely on the content of a par-
ticular prayer will not likely establish a constitutional violation. See
463 U.S., at 794–795. Finally, so long as the town maintains a policy
of nondiscrimination, the Constitution does not require it to search
beyond its borders for non-Christian prayer givers in an effort to
achieve religious balancing. Pp. 9–18.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE ALITO,
concluded in Part II–B that a fact-sensitive inquiry that considers
both the setting in which the prayer arises and the audience to whom
it is directed shows that the town is not coercing its citizens to engage
in a religious observance. The prayer opportunity is evaluated
against the backdrop of a historical practice showing that prayer has
become part of the Nation’s heritage and tradition. It is presumed
that the reasonable observer is acquainted with this tradition and
understands that its purposes are to lend gravity to public proceed-
ings and to acknowledge the place religion holds in the lives of many
private citizens. Furthermore, the principal audience for these invo-
cations is not the public, but the lawmakers themselves. And those
lawmakers did not direct the public to participate, single out dissi-
dents for opprobrium, or indicate that their decisions might be influ-
enced by a person’s acquiescence in the prayer opportunity. Re-
spondents claim that the prayers gave them offense and made them
feel excluded and disrespected, but offense does not equate to coer-
cion. In contrast to Lee v. Weisman, 505 U.S. 577, where the Court
found coercive a religious invocation at a high school graduation, id.,
at 592–594, the record here does not suggest that citizens are dis-
suaded from leaving the meeting room during the prayer, arriving
late, or making a later protest. That the prayer in Greece is deliv-
ered during the opening ceremonial portion of the town’s meeting, not
4 TOWN OF GREECE v. GALLOWAY
Syllabus
the policymaking portion, also suggests that its purpose and effect
are to acknowledge religious leaders and their institutions, not to ex-
clude or coerce nonbelievers. Pp. 18–23.
JUSTICE THOMAS, joined by JUSTICE SCALIA as to Part II, agreed
that the town’s prayer practice does not violate the Establishment
Clause, but concluded that, even if the Establishment Clause were
properly incorporated against the States through the Fourteenth
Amendment, the Clause is not violated by the kind of subtle pres-
sures respondents allegedly suffered, which do not amount to actual
legal coercion. The municipal prayers in this case bear no resem-
blance to the coercive state establishments that existed at the found-
ing, which exercised government power in order to exact financial
support of the church, compel religious observance, or control reli-
gious doctrine. Pp. 1–8.
KENNEDY, J., delivered the opinion of the Court, except as to Part II–
B. ROBERTS, C. J., and ALITO, J., joined the opinion in full, and SCALIA
and THOMAS, JJ., joined except as to Part II–B. ALITO, J., filed a con-
curring opinion, in which SCALIA, J., joined. THOMAS, J., filed an opin-
ion concurring in part and concurring in the judgment, in which SCALIA,
J., joined as to Part II. BREYER, J., filed a dissenting opinion. KAGAN,
J., filed a dissenting opinion, in which GINSBURG, BREYER, and SO-
TOMAYOR, JJ., joined.
Cite as: 572 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–696
_________________
TOWN OF GREECE, NEW YORK, PETITIONER v.
SUSAN GALLOWAY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 5, 2014]
JUSTICE KENNEDY delivered the opinion of the Court,
except as to Part II–B.*
The Court must decide whether the town of Greece, New
York, imposes an impermissible establishment of religion
by opening its monthly board meetings with a prayer. It
must be concluded, consistent with the Court’s opinion in
Marsh v. Chambers, 463 U.S. 783 (1983), that no violation
of the Constitution has been shown.
I
Greece, a town with a population of 94,000, is in upstate
New York. For some years, it began its monthly town
board meetings with a moment of silence. In 1999, the
newly elected town supervisor, John Auberger, decided to
replicate the prayer practice he had found meaningful
while serving in the county legislature. Following the roll
call and recitation of the Pledge of Allegiance, Auberger
would invite a local clergyman to the front of the room to
deliver an invocation. After the prayer, Auberger would
——————
* THE CHIEF JUSTICE and JUSTICE ALITO join this opinion in full.
JUSTICE SCALIA and JUSTICE THOMAS join this opinion except as to Part
II–B.
2 TOWN OF GREECE v. GALLOWAY
Opinion of the Court
thank the minister for serving as the board’s “chaplain for
the month” and present him with a commemorative
plaque. The prayer was intended to place town board
members in a solemn and deliberative frame of mind,
invoke divine guidance in town affairs, and follow a tradi­
tion practiced by Congress and dozens of state legisla­
tures. App. 22a–25a.
The town followed an informal method for selecting
prayer givers, all of whom were unpaid volunteers. A
town employee would call the congregations listed in a
local directory until she found a minister available for that
month’s meeting. The town eventually compiled a list of
willing “board chaplains” who had accepted invitations
and agreed to return in the future. The town at no point
excluded or denied an opportunity to a would-be prayer
giver. Its leaders maintained that a minister or layperson
of any persuasion, including an atheist, could give the
invocation. But nearly all of the congregations in town
were Christian; and from 1999 to 2007, all of the partici­
pating ministers were too.
Greece neither reviewed the prayers in advance of the
meetings nor provided guidance as to their tone or con­
tent, in the belief that exercising any degree of control
over the prayers would infringe both the free exercise and
speech rights of the ministers. Id., at 22a. The town
instead left the guest clergy free to compose their own
devotions. The resulting prayers often sounded both civic
and religious themes. Typical were invocations that asked
the divinity to abide at the meeting and bestow blessings
on the community:
“Lord we ask you to send your spirit of servanthood
upon all of us gathered here this evening to do your
work for the benefit of all in our community. We ask
you to bless our elected and appointed officials so they
may deliberate with wisdom and act with courage.
Bless the members of our community who come here
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Opinion of the Court
to speak before the board so they may state their
cause with honesty and humility. . . . Lord we ask you
to bless us all, that everything we do here tonight will
move you to welcome us one day into your kingdom as
good and faithful servants. We ask this in the name
of our brother Jesus. Amen.” Id., at 45a.
Some of the ministers spoke in a distinctly Christian
idiom; and a minority invoked religious holidays, scrip­
ture, or doctrine, as in the following prayer:
“Lord, God of all creation, we give you thanks and
praise for your presence and action in the world. 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 Chris­
tian faith. We acknowledge the saving sacrifice of
Jesus Christ on the cross. We draw strength, vitality,
and confidence from his resurrection at Easter. . . .
We pray for peace in the world, an end to terrorism,
violence, conflict, and war. We pray for stability, de­
mocracy, and good government in those countries in
which our armed forces are now serving, especially in
Iraq and Afghanistan. . . . Praise and glory be yours,
O Lord, now and forever more. Amen.” Id., at 88a–
89a.
Respondents Susan Galloway and Linda Stephens
attended town board meetings to speak about issues of
local concern, and they objected that the prayers violated
their religious or philosophical views. At one meeting,
Galloway admonished board members that she found
the prayers “offensive,” “intolerable,” and an affront to a
“diverse community.” Complaint in No. 08–cv–6088
(WDNY), ¶66. After respondents complained that Chris­
tian themes pervaded the prayers, to the exclusion of
citizens who did not share those beliefs, the town invited a
Jewish layman and the chairman of the local Baha’i tem­
ple to deliver prayers. A Wiccan priestess who had read
4 TOWN OF GREECE v. GALLOWAY
Opinion of the Court
press reports about the prayer controversy requested, and
was granted, an opportunity to give the invocation.
Galloway and Stephens brought suit in the United
States District Court for the Western District of New
York. They alleged that the town violated the First
Amendment’s Establishment Clause by preferring Chris­
tians over other prayer givers and by sponsoring sectarian
prayers, such as those given “in Jesus’ name.” 732
F. Supp. 2d 195, 203 (2010). They did not seek an end to
the prayer practice, but rather requested an injunction
that would limit the town to “inclusive and ecumenical”
prayers that referred only to a “generic God” and would
not associate the government with any one faith or belief.
Id., at 210, 241.
The District Court on summary judgment upheld the
prayer practice as consistent with the First Amendment.
It found no impermissible preference for Christianity,
noting that the town had opened the prayer program to all
creeds and excluded none. Although most of the prayer
givers were Christian, this fact reflected only the predom­
inantly Christian identity of the town’s congregations,
rather than an official policy or practice of discriminating
against minority faiths. The District Court found no
authority for the proposition that the First Amendment
required Greece to invite clergy from congregations be­
yond its borders in order to achieve a minimum level of
religious diversity.
The District Court also rejected the theory that legisla­
tive prayer must be nonsectarian. The court began its
inquiry with the opinion in Marsh v. Chambers, 463 U.S.
783, which permitted prayer in state legislatures by a
chaplain paid from the public purse, so long as the prayer
opportunity was not “exploited to proselytize or advance
any one, or to disparage any other, faith or belief,” id., at
794–795. With respect to the prayer in Greece, the Dis­
trict Court concluded that references to Jesus, and the
occasional request that the audience stand for the prayer,
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Opinion of the Court
did not amount to impermissible proselytizing. It located
in Marsh no additional requirement that the prayers be
purged of sectarian content. In this regard the court
quoted recent invocations offered in the U. S. House of
Representatives “in the name of our Lord Jesus Christ,”
e.g., 156 Cong Rec. H5205 (June 30, 2010), and situated
prayer in this context as part a long tradition. Finally, the
trial court noted this Court’s statement in County of Alle-
gheny v. American Civil Liberties Union, Greater Pitts-
burgh Chapter, 492 U.S. 573, 603 (1989), that the prayers
in Marsh did not offend the Establishment Clause “be­
cause the particular chaplain had ‘removed all references
to Christ.’ ” But the District Court did not read that
statement to mandate that legislative prayer be nonsec­
tarian, at least in circumstances where the town permitted
clergy from a variety of faiths to give invocations. By
welcoming many viewpoints, the District Court concluded,
the town would be unlikely to give the impression that it
was affiliating itself with any one religion.
The Court of Appeals for the Second Circuit reversed.
681 F.3d 20, 34 (2012). It held that some aspects of the
prayer program, viewed in their totality by a reasonable
observer, conveyed the message that Greece was endors­
ing Christianity. The town’s failure to promote the prayer
opportunity to the public, or to invite ministers from con­
gregations outside the town limits, all but “ensured a
Christian viewpoint.” Id., at 30–31. Although the court
found no inherent problem in the sectarian content of the
prayers, it concluded that the “steady drumbeat” of Chris­
tian prayer, unbroken by invocations from other faith
traditions, tended to affiliate the town with Christianity.
Id., at 32. Finally, the court found it relevant that guest
clergy sometimes spoke on behalf of all present at the
meeting, as by saying “let us pray,” or by asking audience
members to stand and bow their heads: “The invitation . . .
to participate in the prayer . . . placed audience members
6 TOWN OF GREECE v. GALLOWAY
Opinion of the Court
who are nonreligious or adherents of non-Christian reli­
gion in the awkward position of either participating in
prayers invoking beliefs they did not share or appearing to
show disrespect for the invocation.” Ibid. That board
members bowed their heads or made the sign of the cross
further conveyed the message that the town endorsed
Christianity. The Court of Appeals emphasized that it
was the “interaction of the facts present in this case,”
rather than any single element, that rendered the prayer
unconstitutional. Id., at 33.
Having granted certiorari to decide whether the town’s
prayer practice violates the Establishment Clause, 569
U. S. ___ (2013), the Court now reverses the judgment of
the Court of Appeals.
II
In Marsh v. Chambers, 463 U.S. 783, the Court found
no First Amendment violation in the Nebraska Legisla­
ture’s practice of opening its sessions with a prayer deliv­
ered by a chaplain paid from state funds. The decision
concluded that legislative prayer, while religious in na­
ture, has long been understood as compatible with the
Establishment Clause. As practiced by Congress since the
framing of the Constitution, legislative prayer lends grav-
ity to public business, reminds lawmakers to transcend
petty differences in pursuit of a higher purpose, and ex­
presses a common aspiration to a just and peaceful soci-
ety. See Lynch v. Donnelly, 465 U.S. 668, 693 (1984)
(O’Connor, J., concurring); cf. A. Adams & C. Emmerich, A
Nation Dedicated to Religious Liberty 83 (1990). The
Court has considered this symbolic expression to be a
“tolerable acknowledgement of beliefs widely held,” Marsh,
463 U.S., at 792, rather than a first, treacherous step
towards establishment of a state church.
Marsh is sometimes described as “carving out an excep­
tion” to the Court’s Establishment Clause jurisprudence,
Cite as: 572 U. S. ____ (2014) 7
Opinion of the Court
because it sustained legislative prayer without subjecting
the practice to “any of the formal ‘tests’ that have tradi­
tionally structured” this inquiry. Id., at 796, 813 (Bren­
nan, J., dissenting). The Court in Marsh found those tests
unnecessary because history supported the conclusion that
legislative invocations are compatible with the Establish­
ment Clause. The First Congress made it an early item of
business to appoint and pay official chaplains, and both
the House and Senate have maintained the office virtually
uninterrupted since that time. See id., at 787–789, and
n. 10; N. Feldman, Divided by God 109 (2005). But see
Marsh, supra, at 791–792, and n. 12 (noting dissenting
views among the Framers); Madison, “Detached Memo­
randa”, 3 Wm. & Mary Quarterly 534, 558–559 (1946)
(hereinafter Madison’s Detached Memoranda). When
Marsh was decided, in 1983, legislative prayer had per­
sisted in the Nebraska Legislature for more than a cen-
tury, and the majority of the other States also had the
same, consistent practice. 463 U.S., at 788–790, and n. 11.
Although no information has been cited by the parties to
indicate how many local legislative bodies open their
meetings with prayer, this practice too has historical
precedent. See Reports of Proceedings of the City Council
of Boston for the Year Commencing Jan. 1, 1909, and
Ending Feb. 5, 1910, pp. 1–2 (1910) (Rev. Arthur Little)
(“And now we desire to invoke Thy presence, Thy blessing,
and Thy guidance upon those who are gathered here this
morning . . .”). “In light of the unambiguous and unbroken
history of more than 200 years, there can be no doubt that
the practice of opening legislative sessions with a prayer
has become part of the fabric of our society.” Marsh,
supra, at 792.
Yet Marsh must not be understood as permitting a
practice that would amount to a constitutional violation if
not for its historical foundation. The case teaches instead
that the Establishment Clause must be interpreted “by
8 TOWN OF GREECE v. GALLOWAY
Opinion of the Court
reference to historical practices and understandings.”
County of Allegheny, 492 U.S., at 670 (KENNEDY, J., con­
curring in judgment in part and dissenting in part). That
the First Congress provided for the appointment of chap­
lains only days after approving language for the First
Amendment demonstrates that the Framers considered
legislative prayer a benign acknowledgment of religion’s
role in society. D. Currie, The Constitution in Congress:
The Federalist Period 1789–1801, pp. 12–13 (1997). In the
1850’s, the judiciary committees in both the House and
Senate reevaluated the practice of official chaplaincies
after receiving petitions to abolish the office. The commit­
tees concluded that the office posed no threat of an estab­
lishment because lawmakers were not compelled to attend
the daily prayer, S. Rep. No. 376, 32d Cong., 2d Sess., 2
(1853); no faith was excluded by law, nor any favored, id.,
at 3; and the cost of the chaplain’s salary imposed a van­
ishingly small burden on taxpayers, H. Rep. No. 124, 33d
Cong., 1st Sess., 6 (1854). Marsh stands for the proposi­
tion that it is not necessary to define the precise boundary
of the Establishment Clause where history shows that the
specific practice is permitted. Any test the Court adopts
must acknowledge a practice that was accepted by the
Framers and has withstood the critical scrutiny of time
and political change. County of Allegheny, supra, at 670
(opinion of KENNEDY, J.); see also School Dist. of Abington
Township v. Schempp, 374 U.S. 203, 294 (1963) (Brennan,
J., concurring) (“[T]he line we must draw between the
permissible and the impermissible is one which accords
with history and faithfully reflects the understanding of
the Founding Fathers”). A test that would sweep away
what has so long been settled would create new controversy
and begin anew the very divisions along religious lines
that the Establishment Clause seeks to prevent. See Van
Orden v. Perry, 545 U.S. 677, 702–704 (2005) (BREYER, J.,
concurring in judgment).
Cite as: 572 U. S. ____ (2014) 9
Opinion of the Court
The Court’s inquiry, then, must be to determine whether
the prayer practice in the town of Greece fits within the
tradition long followed in Congress and the state legisla­
tures. Respondents assert that the town’s prayer exercise
falls outside that tradition and transgresses the Estab­
lishment Clause for two independent but mutually rein­
forcing reasons. First, they argue that Marsh did not
approve prayers containing sectarian language or themes,
such as the prayers offered in Greece that referred to the
“death, resurrection, and ascension of the Savior Jesus
Christ,” App. 129a, and the “saving sacrifice of Jesus
Christ on the cross,” id., at 88a. Second, they argue that
the setting and conduct of the town board meetings create
social pressures that force nonadherents to remain in the
room or even feign participation in order to avoid offend­
ing the representatives who sponsor the prayer and will
vote on matters citizens bring before the board. The sec­
tarian content of the prayers compounds the subtle coer­
cive pressures, they argue, because the nonbeliever who
might tolerate ecumenical prayer is forced to do the same
for prayer that might be inimical to his or her beliefs.
A
Respondents maintain that prayer must be nonsectarian,
or not identifiable with any one religion; and they fault
the town for permitting guest chaplains to deliver prayers
that “use overtly Christian terms” or “invoke specifics of
Christian theology.” Brief for Respondents 20. A prayer is
fitting for the public sphere, in their view, only if it con­
tains the ‘ “most general, nonsectarian reference to God,’ ”
id., at 33 (quoting M. Meyerson, Endowed by Our Creator:
The Birth of Religious Freedom in America 11–12 (2012)),
and eschews mention of doctrines associated with any one
faith, Brief for Respondents 32–33. They argue that prayer
which contemplates “the workings of the Holy Spirit, the
events of Pentecost, and the belief that God ‘has raised
10 TOWN OF GREECE v. GALLOWAY
Opinion of the Court
up the Lord Jesus’ and ‘will raise us, in our turn, and put
us by His side’ ” would be impermissible, as would any
prayer that reflects dogma particular to a single faith
tradition. Id., at 34 (quoting App. 89a and citing id., at
56a, 123a, 134a).
An insistence on nonsectarian or ecumenical prayer as a
single, fixed standard is not consistent with the tradition
of legislative prayer outlined in the Court’s cases. The
Court found the prayers in Marsh consistent with the
First Amendment not because they espoused only a ge-
neric theism but because our history and tradition have
shown that prayer in this limited context could “coexis[t]
with the principles of disestablishment and religious
freedom.” 463 U.S., at 786. The Congress that drafted
the First Amendment would have been accustomed to
invocations containing explicitly religious themes of the
sort respondents find objectionable. One of the Senate’s
first chaplains, the Rev. William White, gave prayers in a
series that included the Lord’s Prayer, the Collect for
Ash Wednesday, prayers for peace and grace, a general
thanksgiving, St. Chrysostom’s Prayer, and a prayer
seeking “the grace of our Lord Jesus Christ, &c.” Letter
from W. White to H. Jones (Dec. 29, 1830), in B. Wilson,
Memoir of the Life of the Right Reverend William White,
D. D., Bishop of the Protestant Episcopal Church in the
State of Pennsylvania 322 (1839); see also New Hampshire
Patriot & State Gazette, Dec. 15, 1823, p. 1 (describing a
Senate prayer addressing the “Throne of Grace”); Cong.
Globe, 37th Cong., 1st Sess., 2 (1861) (reciting the Lord’s
Prayer). The decidedly Christian nature of these prayers
must not be dismissed as the relic of a time when our
Nation was less pluralistic than it is today. Congress
continues to permit its appointed and visiting chaplains to
express themselves in a religious idiom. It acknowledges
our growing diversity not by proscribing sectarian content
but by welcoming ministers of many creeds. See, e.g., 160
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Opinion of the Court
Cong. Rec. S1329 (Mar. 6, 2014) (Dalai Lama) (“I am a
Buddhist monk—a simple Buddhist monk—so we pray to
Buddha and all other Gods”); 159 Cong. Rec. H7006 (Nov.
13, 2013) (Rabbi Joshua Gruenberg) (“Our God and God of
our ancestors, Everlasting Spirit of the Universe . . .”); 159
Cong. Rec. H3024 (June 4, 2013) (Satguru Bodhinatha
Veylanswami) (“Hindu scripture declares, without equivo­
cation, that the highest of high ideals is to never know-
ingly harm anyone”); 158 Cong. Rec. H5633 (Aug. 2, 2012)
(Imam Nayyar Imam) (“The final prophet of God, Mu­
hammad, peace be upon him, stated: ‘The leaders of a
people are a representation of their deeds’ ”).
The contention that legislative prayer must be generic
or nonsectarian derives from dictum in County of Allegheny,
492 U.S. 573, that was disputed when written and has
been repudiated by later cases. There the Court held that
a crèche placed on the steps of a county courthouse to
celebrate the Christmas season violated the Establish­
ment Clause because it had “the effect of endorsing a
patently Christian message.” Id., at 601. Four dissenting
Justices disputed that endorsement could be the proper
test, as it likely would condemn a host of traditional prac­
tices that recognize the role religion plays in our society,
among them legislative prayer and the “forthrightly reli­
gious” Thanksgiving proclamations issued by nearly every
President since Washington. Id., at 670–671. The Court
sought to counter this criticism by recasting Marsh to
permit only prayer that contained no overtly Christian
references:
“However history may affect the constitutionality of
nonsectarian references to religion by the government,
history cannot legitimate practices that demonstrate
the government’s allegiance to a particular sect or
creed . . . . The legislative prayers involved in Marsh
did not violate this principle because the particular
12 TOWN OF GREECE v. GALLOWAY
Opinion of the Court
chaplain had ‘removed all references to Christ.’ ” Id.,
at 603 (quoting Marsh, supra, at 793, n. 14; footnote
omitted).
This proposition is irreconcilable with the facts of Marsh
and with its holding and reasoning. Marsh nowhere sug­
gested that the constitutionality of legislative prayer turns
on the neutrality of its content. The opinion noted that
Nebraska’s chaplain, the Rev. Robert E. Palmer, modu-
lated the “explicitly Christian” nature of his prayer and
“removed all references to Christ” after a Jewish law­
maker complained. 463 U.S., at 793, n. 14. With this foot­
note, the Court did no more than observe the practical
demands placed on a minister who holds a permanent,
appointed position in a legislature and chooses to write his
or her prayers to appeal to more members, or at least to
give less offense to those who object. See Mallory, “An
Officer of the House Which Chooses Him, and Nothing
More”: How Should Marsh v. Chambers Apply to Rotating
Chaplains?, 73 U. Chi. L. Rev. 1421, 1445 (2006). Marsh
did not suggest that Nebraska’s prayer practice would
have failed had the chaplain not acceded to the legislator’s
request. Nor did the Court imply the rule that prayer
violates the Establishment Clause any time it is given in
the name of a figure deified by only one faith or creed. See
Van Orden, 545 U.S., at 688, n. 8 (recognizing that the
prayers in Marsh were “often explicitly Christian” and
rejecting the view that this gave rise to an establishment
violation). To the contrary, the Court instructed that the
“content of the prayer is not of concern to judges,” provided
“there is no indication that the prayer opportunity has
been exploited to proselytize or advance any one, or to
disparage any other, faith or belief.” 463 U.S., at 794–
795.
To hold that invocations must be nonsectarian would
force the legislatures that sponsor prayers and the courts
Cite as: 572 U. S. ____ (2014) 13
Opinion of the Court
that are asked to decide these cases to act as supervisors
and censors of religious speech, a rule that would involve
government in religious matters to a far greater degree
than is the case under the town’s current practice of nei­
ther editing or approving prayers in advance nor criticiz­
ing their content after the fact. Cf. Hosanna-Tabor Evan-
gelical Lutheran Church and School v. EEOC, 565 U. S.
___, ___ (2012) (slip op., at 13–14). Our Government is
prohibited from prescribing prayers to be recited in our
public institutions in order to promote a preferred system
of belief or code of moral behavior. Engel v. Vitale, 370
U.S. 421, 430 (1962). It would be but a few steps removed
from that prohibition for legislatures to require chaplains
to redact the religious content from their message in order
to make it acceptable for the public sphere. Government
may not mandate a civic religion that stifles any but the
most generic reference to the sacred any more than it may
prescribe a religious orthodoxy. See Lee v. Weisman, 505
U.S. 577, 590 (1992) (“The suggestion that government
may establish an official or civic religion as a means of
avoiding the establishment of a religion with more specific
creeds strikes us as a contradiction that cannot be ac-
cepted”); Schempp, 374 U.S., at 306 (Goldberg, J., concur­
ring) (arguing that “untutored devotion to the concept of
neutrality” must not lead to “a brooding and pervasive
devotion to the secular”).
Respondents argue, in effect, that legislative prayer may
be addressed only to a generic God. The law and the
Court could not draw this line for each specific prayer or
seek to require ministers to set aside their nuanced and
deeply personal beliefs for vague and artificial ones.
There is doubt, in any event, that consensus might be
reached as to what qualifies as generic or nonsectarian.
Honorifics like “Lord of Lords” or “King of Kings” might
strike a Christian audience as ecumenical, yet these titles
may have no place in the vocabulary of other faith tradi­
14 TOWN OF GREECE v. GALLOWAY
Opinion of the Court
tions. The difficulty, indeed the futility, of sifting sectarian
from nonsectarian speech is illustrated by a letter that
a lawyer for the respondents sent the town in the early
stages of this litigation. The letter opined that references
to “Father, God, Lord God, and the Almighty” would be
acceptable in public prayer, but that references to “Jesus
Christ, the Holy Spirit, and the Holy Trinity” would not.
App. 21a. Perhaps the writer believed the former group­
ing would be acceptable to monotheists. Yet even seem­
ingly general references to God or the Father might alien­
ate nonbelievers or polytheists. McCreary County v.
American Civil Liberties Union of Ky., 545 U.S. 844, 893
(2005) (SCALIA, J., dissenting). Because it is unlikely that
prayer will be inclusive beyond dispute, it would be un­
wise to adopt what respondents think is the next-best
option: permitting those religious words, and only those
words, that are acceptable to the majority, even if they
will exclude some. Torcaso v. Watkins, 367 U.S. 488, 495
(1961). The First Amendment is not a majority rule, and
government may not seek to define permissible categories
of religious speech. Once it invites prayer into the public
sphere, government must permit a prayer giver to address
his or her own God or gods as conscience dictates, unfet­
tered by what an administrator or judge considers to be
nonsectarian.
In rejecting the suggestion that legislative prayer must
be nonsectarian, the Court does not imply that no con­
straints remain on its content. The relevant constraint
derives from its place at the opening of legislative ses­
sions, where it is meant to lend gravity to the occasion and
reflect values long part of the Nation’s heritage. Prayer
that is solemn and respectful in tone, that invites law­
makers to reflect upon shared ideals and common ends
before they embark on the fractious business of governing,
serves that legitimate function. If the course and practice
over time shows that the invocations denigrate nonbeliev­
Cite as: 572 U. S. ____ (2014) 15
Opinion of the Court
ers or religious minorities, threaten damnation, or preach
conversion, many present may consider the prayer to fall
short of the desire to elevate the purpose of the occasion
and to unite lawmakers in their common effort. That
circumstance would present a different case than the one
presently before the Court.
The tradition reflected in Marsh permits chaplains to
ask their own God for blessings of peace, justice, and
freedom that find appreciation among people of all faiths.
That a prayer is given in the name of Jesus, Allah, or
Jehovah, or that it makes passing reference to religious
doctrines, does not remove it from that tradition. These
religious themes provide particular means to universal
ends. Prayer that reflects beliefs specific to only some
creeds can still serve to solemnize the occasion, so long as
the practice over time is not “exploited to proselytize or
advance any one, or to disparage any other, faith or be­
lief.” Marsh, 463 U.S., at 794–795.
It is thus possible to discern in the prayers offered to
Congress a commonality of theme and tone. While these
prayers vary in their degree of religiosity, they often seek
peace for the Nation, wisdom for its lawmakers, and jus­
tice for its people, values that count as universal and that
are embodied not only in religious traditions, but in our
founding documents and laws. The first prayer delivered
to the Continental Congress by the Rev. Jacob Duché on
Sept. 7, 1774, provides an example:
“Be Thou present O God of Wisdom and direct the
counsel of this Honorable Assembly; enable them to
settle all things on the best and surest foundations;
that the scene of blood may be speedily closed; that
Order, Harmony, and Peace be effectually restored,
and the Truth and Justice, Religion and Piety, prevail
and flourish among the people.
“Preserve the health of their bodies, and the vigor of
16 TOWN OF GREECE v. GALLOWAY
Opinion of the Court
their minds, shower down on them, and the millions
they here represent, such temporal Blessings as Thou
seest expedient for them in this world, and crown
them with everlasting Glory in the world to come. All
this we ask in the name and through the merits of
Jesus Christ, Thy Son and our Saviour, Amen.” W.
Federer, America’s God and Country 137 (2000).
From the earliest days of the Nation, these invocations
have been addressed to assemblies comprising many
different creeds. These ceremonial prayers strive for the
idea that people of many faiths may be united in a com­
munity of tolerance and devotion. Even those who dis-
agree as to religious doctrine may find common ground in
the desire to show respect for the divine in all aspects of
their lives and being. Our tradition assumes that adult
citizens, firm in their own beliefs, can tolerate and per­
haps appreciate a ceremonial prayer delivered by a person
of a different faith. See Letter from John Adams to Abi­
gail Adams (Sept. 16, 1774), in C. Adams, Familiar Letters
of John Adams and His Wife Abigail Adams, During the
Revolution 37–38 (1876).
The prayers delivered in the town of Greece do not fall
outside the tradition this Court has recognized. A number
of the prayers did invoke the name of Jesus, the Heavenly
Father, or the Holy Spirit, but they also invoked universal
themes, as by celebrating the changing of the seasons or
calling for a “spirit of cooperation” among town leaders.
App. 31a, 38a. Among numerous examples of such prayer
in the record is the invocation given by the Rev. Richard
Barbour at the September 2006 board meeting:
“Gracious God, you have richly blessed our nation
and this community. Help us to remember your gen­
erosity and give thanks for your goodness. Bless the
elected leaders of the Greece Town Board as they con­
duct the business of our town this evening. Give them
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wisdom, courage, discernment and a single-minded
desire to serve the common good. We ask your bless­
ing on all public servants, and especially on our police
force, firefighters, and emergency medical person­
nel. . . . Respectful of every religious tradition, I offer
this prayer in the name of God’s only son Jesus
Christ, the Lord, Amen.” Id., at 98a–99a.
Respondents point to other invocations that disparaged
those who did not accept the town’s prayer practice. One
guest minister characterized objectors as a “minority” who
are “ignorant of the history of our country,” id., at 108a,
while another lamented that other towns did not have
“God-fearing” leaders, id., at 79a. Although these two
remarks strayed from the rationale set out in Marsh, they
do not despoil a practice that on the whole reflects and
embraces our tradition. Absent a pattern of prayers that
over time denigrate, proselytize, or betray an impermissi­
ble government purpose, a challenge based solely on the
content of a prayer will not likely establish a constitutional
violation. Marsh, indeed, requires an inquiry into the
prayer opportunity as a whole, rather than into the con­
tents of a single prayer. 463 U.S., at 794–795.
Finally, the Court disagrees with the view taken by the
Court of Appeals that the town of Greece contravened the
Establishment Clause by inviting a predominantly Chris­
tian set of ministers to lead the prayer. The town made
reasonable efforts to identify all of the congregations
located within its borders and represented that it would
welcome a prayer by any minister or layman who wished
to give one. That nearly all of the congregations in town
turned out to be Christian does not reflect an aversion or
bias on the part of town leaders against minority faiths.
So long as the town maintains a policy of nondiscrimina­
tion, the Constitution does not require it to search beyond
its borders for non-Christian prayer givers in an effort to
18 TOWN OF GREECE v. GALLOWAY
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Opinion of ENNEDY, J.
achieve religious balancing. The quest to promote “a
‘diversity’ of religious views” would require the town “to
make wholly inappropriate judgments about the number
of religions [it] should sponsor and the relative frequency
with which it should sponsor each,” Lee, 505 U.S., at 617
(Souter, J., concurring), a form of government entangle­
ment with religion that is far more troublesome than the
current approach.
B
Respondents further seek to distinguish the town’s
prayer practice from the tradition upheld in Marsh on the
ground that it coerces participation by nonadherents.
They and some amici contend that prayer conducted in the
intimate setting of a town board meeting differs in funda­
mental ways from the invocations delivered in Congress
and state legislatures, where the public remains segregated
from legislative activity and may not address the body
except by occasional invitation. Citizens attend town
meetings, on the other hand, to accept awards; speak on
matters of local importance; and petition the board for
action that may affect their economic interests, such as
the granting of permits, business licenses, and zoning
variances. Respondents argue that the public may feel
subtle pressure to participate in prayers that violate their
beliefs in order to please the board members from whom
they are about to seek a favorable ruling. In their view
the fact that board members in small towns know many of
their constituents by name only increases the pressure to
conform.
It is an elemental First Amendment principle that
government may not coerce its citizens “to support or
participate in any religion or its exercise.” County of
Allegheny, 492 U.S., at 659 (KENNEDY, J., concurring in
judgment in part and dissenting in part); see also Van
Orden, 545 U.S., at 683 (plurality opinion) (recognizing
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Opinion of ENNEDY, J.
that our “institutions must not press religious observances
upon their citizens”). On the record in this case the Court
is not persuaded that the town of Greece, through the act
of offering a brief, solemn, and respectful prayer to open
its monthly meetings, compelled its citizens to engage in a
religious observance. The inquiry remains a fact-sensitive
one that considers both the setting in which the prayer
arises and the audience to whom it is directed.
The prayer opportunity in this case must be evaluated
against the backdrop of historical practice. As a practice
that has long endured, legislative prayer has become part
of our heritage and tradition, part of our expressive idiom,
similar to the Pledge of Allegiance, inaugural prayer, or
the recitation of “God save the United States and this
honorable Court” at the opening of this Court’s sessions.
See Lynch, 465 U.S., at 693 (O’Connor, J., concurring). It
is presumed that the reasonable observer is acquainted
with this tradition and understands that its purposes are
to lend gravity to public proceedings and to acknowledge
the place religion holds in the lives of many private citi­
zens, not to afford government an opportunity to proselyt­
ize or force truant constituents into the pews. See Salazar
v. Buono, 559 U.S. 700, 720–721 (2010) (plurality opin­
ion); Santa Fe Independent School Dist. v. Doe, 530 U.S.
290, 308 (2000). That many appreciate these acknowl­
edgments of the divine in our public institutions does not
suggest that those who disagree are compelled to join the
expression or approve its content. West Virginia Bd. of
Ed. v. Barnette, 319 U.S. 624, 642 (1943).
The principal audience for these invocations is not,
indeed, the public but lawmakers themselves, who may
find that a moment of prayer or quiet reflection sets the
mind to a higher purpose and thereby eases the task of
governing. The District Court in Marsh described the
prayer exercise as “an internal act” directed at the Ne­
braska Legislature’s “own members,” Chambers v. Marsh,
20 TOWN OF GREECE v. GALLOWAY
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Opinion of ENNEDY, J.
504 F. Supp. 585, 588 (Neb. 1980), rather than an effort to
promote religious observance among the public. See also
Lee, 505 U.S., at 630, n. 8 (Souter, J., concurring) (describ­
ing Marsh as a case “in which government officials in­
voke[d] spiritual inspiration entirely for their own bene­
fit”); Atheists of Fla., Inc. v. Lakeland, 713 F.3d 577, 583
(CA11 2013) (quoting a city resolution providing for prayer
“for the benefit and blessing of ” elected leaders); Madi­
son’s Detached Memoranda 558 (characterizing prayer in
Congress as “religious worship for national representa­
tives”); Brief for U. S. Senator Marco Rubio et al. as Amici
Curiae 30–33; Brief for 12 Members of Congress as Amici
Curiae 6. To be sure, many members of the public find
these prayers meaningful and wish to join them. But their
purpose is largely to accommodate the spiritual needs of
lawmakers and connect them to a tradition dating to the
time of the Framers. For members of town boards and
commissions, who often serve part-time and as volunteers,
ceremonial prayer may also reflect the values they hold as
private citizens. The prayer is an opportunity for them to
show who and what they are without denying the right to
dissent by those who disagree.
The analysis would be different if town board members
directed the public to participate in the prayers, singled
out dissidents for opprobrium, or indicated that their
decisions might be influenced by a person’s acquiescence
in the prayer opportunity. No such thing occurred in the
town of Greece. Although board members themselves
stood, bowed their heads, or made the sign of the cross
during the prayer, they at no point solicited similar ges­
tures by the public. Respondents point to several occa­
sions where audience members were asked to rise for the
prayer. These requests, however, came not from town
leaders but from the guest ministers, who presumably are
accustomed to directing their congregations in this way
and might have done so thinking the action was inclusive,
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Opinion of ENNEDY, J.
not coercive. See App. 69a (“Would you bow your heads
with me as we invite the Lord’s presence here tonight?”);
id., at 93a (“Let us join our hearts and minds together in
prayer”); id., at 102a (“Would you join me in a moment of
prayer?”); id., at 110a (“Those who are willing may join me
now in prayer”). Respondents suggest that constituents
might feel pressure to join the prayers to avoid irritating
the officials who would be ruling on their petitions, but
this argument has no evidentiary support. Nothing in the
record indicates that town leaders allocated benefits and
burdens based on participation in the prayer, or that
citizens were received differently depending on whether
they joined the invocation or quietly declined. In no in­
stance did town leaders signal disfavor toward nonpartici­
pants or suggest that their stature in the community was
in any way diminished. A practice that classified citizens
based on their religious views would violate the Constitu­
tion, but that is not the case before this Court.
In their declarations in the trial court, respondents
stated that the prayers gave them offense and made them
feel excluded and disrespected. Offense, however, does not
equate to coercion. Adults often encounter speech they
find disagreeable; and an Establishment Clause violation
is not made out any time a person experiences a sense of
affront from the expression of contrary religious views in a
legislative forum, especially where, as here, any member
of the public is welcome in turn to offer an invocation
reflecting his or her own convictions. See Elk Grove Uni-
fied School Dist. v. Newdow, 542 U.S. 1, 44 (2004)
(O’Connor, J., concurring) (“The compulsion of which
Justice Jackson was concerned . . . was of the direct sort—
the Constitution does not guarantee citizens a right
entirely to avoid ideas with which they disagree”). If circum-
stances arise in which the pattern and practice of ceremo­
nial, legislative prayer is alleged to be a means to coerce or
intimidate others, the objection can be addressed in the
22 TOWN OF GREECE v. GALLOWAY
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Opinion of ENNEDY, J.
regular course. But the showing has not been made here,
where the prayers neither chastised dissenters nor at­
tempted lengthy disquisition on religious dogma. Courts
remain free to review the pattern of prayers over time to
determine whether they comport with the tradition of
solemn, respectful prayer approved in Marsh, or whether
coercion is a real and substantial likelihood. But in the
general course legislative bodies do not engage in imper­
missible coercion merely by exposing constituents to prayer
they would rather not hear and in which they need not
participate. See County of Allegheny, 492 U.S., at 670
(KENNEDY, J., concurring in judgment in part and dissent­
ing in part).
This case can be distinguished from the conclusions and
holding of Lee v. Weisman, 505 U.S. 577. There the Court
found that, in the context of a graduation where school
authorities maintained close supervision over the conduct
of the students and the substance of the ceremony, a
religious invocation was coercive as to an objecting stu­
dent. Id., at 592–594; see also Santa Fe Independent
School Dist., 530 U.S., at 312. Four Justices dissented in
Lee, but the circumstances the Court confronted there are
not present in this case and do not control its outcome.
Nothing in the record suggests that members of the public
are dissuaded from leaving the meeting room during the
prayer, arriving late, or even, as happened here, making a
later protest. In this case, as in Marsh, board members
and constituents are “free to enter and leave with little
comment and for any number of reasons.” Lee, supra, at
597. Should nonbelievers choose to exit the room during a
prayer they find distasteful, their absence will not stand
out as disrespectful or even noteworthy. And should they
remain, their quiet acquiescence will not, in light of our
traditions, be interpreted as an agreement with the words
or ideas expressed. Neither choice represents an unconsti­
tutional imposition as to mature adults, who “presumably”
Cite as: 572 U. S. ____ (2014) 23
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Opinion of ENNEDY, J.
are “not readily susceptible to religious indoctrination or
peer pressure.” Marsh, 463 U.S., at 792 (internal quota­
tion marks and citations omitted).
In the town of Greece, the prayer is delivered during the
ceremonial portion of the town’s meeting. Board members
are not engaged in policymaking at this time, but in more
general functions, such as swearing in new police officers,
inducting high school athletes into the town hall of fame,
and presenting proclamations to volunteers, civic groups,
and senior citizens. It is a moment for town leaders to
recognize the achievements of their constituents and the
aspects of community life that are worth celebrating. By
inviting ministers to serve as chaplain for the month, and
welcoming them to the front of the room alongside civic
leaders, the town is acknowledging the central place that
religion, and religious institutions, hold in the lives of
those present. Indeed, some congregations are not simply
spiritual homes for town residents but also the provider of
social services for citizens regardless of their beliefs. See
App. 31a (thanking a pastor for his “community involve­
ment”); id., at 44a (thanking a deacon “for the job that you
have done on behalf of our community”). The inclusion of
a brief, ceremonial prayer as part of a larger exercise in
civic recognition suggests that its purpose and effect are to
acknowledge religious leaders and the institutions they
represent rather than to exclude or coerce nonbelievers.
Ceremonial prayer is but a recognition that, since this
Nation was founded and until the present day, many
Americans deem that their own existence must be under­
stood by precepts far beyond the authority of government
to alter or define and that willing participation in civic
affairs can be consistent with a brief acknowledgment of
their belief in a higher power, always with due respect for
those who adhere to other beliefs. The prayer in this case
has a permissible ceremonial purpose. It is not an uncon­
stitutional establishment of religion.
24 TOWN OF GREECE v. GALLOWAY
Opinion of the Court
* * *
The town of Greece does not violate the First Amend­
ment by opening its meetings with prayer that comports
with our tradition and does not coerce participation by
nonadherents. The judgment of the U. S. Court of Appeals
for the Second Circuit is reversed.
It is so ordered.
Cite as: 572 U. S. ____ (2014) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–696
_________________
TOWN OF GREECE, NEW YORK, PETITIONER v.
SUSAN GALLOWAY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 5, 2014]
JUSTICE ALITO, with whom JUSTICE SCALIA joins,
concurring.
I write separately to respond to the principal dissent,
which really consists of two very different but intertwined
opinions. One is quite narrow; the other is sweeping. I
will address both.
I
First, however, since the principal dissent accuses the
Court of being blind to the facts of this case, post, at 20
(opinion of KAGAN, J.), I recount facts that I find particu­
larly salient.
The town of Greece is a municipality in upstate New
York that borders the city of Rochester. The town decided
to emulate a practice long established in Congress and
state legislatures by having a brief prayer before sessions
of the town board. The task of lining up clergy members
willing to provide such a prayer was given to the town’s
office of constituent services. 732 F. Supp. 2d 195, 197–
198 (WDNY 2010). For the first four years of the practice,
a clerical employee in the office would randomly call reli­
gious organizations listed in the Greece “Community
Guide,” a local directory published by the Greece Chamber
of Commerce, until she was able to find somebody willing
to give the invocation. Id., at 198. This employee eventu­
2 TOWN OF GREECE v. GALLOWAY
ALITO, J., concurring
ally began keeping a list of individuals who had agreed to
give the invocation, and when a second clerical employee
took over the task of finding prayer-givers, the first em­
ployee gave that list to the second. Id., at 198, 199. The
second employee then randomly called organizations on
that list—and possibly others in the Community Guide—
until she found someone who agreed to provide the prayer.
Id., at 199.
Apparently, all the houses of worship listed in the local
Community Guide were Christian churches. Id., at 198–
200, 203. That is unsurprising given the small number of
non-Christians in the area. Although statistics for the
town of Greece alone do not seem to be available, statistics
have been compiled for Monroe County, which includes
both the town of Greece and the city of Rochester. Accord­
ing to these statistics, of the county residents who have a
religious affiliation, about 3% are Jewish, and for other
non-Christian faiths, the percentages are smaller.1 There
are no synagogues within the borders of the town of
Greece, id., at 203, but there are several not far away
across the Rochester border. Presumably, Jewish resi­
dents of the town worship at one or more of those syna­
gogues, but because these synagogues fall outside the
town’s borders, they were not listed in the town’s local
directory, and the responsible town employee did not
include them on her list. Ibid. Nor did she include any
other non-Christian house of worship. Id., at 198–200.2
——————
1 See Assn. of Statisticians of Am. Religious Bodies, C. Grammich
et al., 2010 U. S. Religion Census: Religious Congregations & Member­
ship Study 400–401 (2012).
2 It appears that there is one non-Christian house of worship, a Bud­
dhist temple, within the town’s borders, but it was not listed in the
town directory. 732 F. Supp. 2d, at 203. Although located within the
town’s borders, the temple has a Rochester mailing address. And while
the respondents “each lived in the Town more than thirty years, neither
was personally familiar with any mosques, synagogues, temples, or
other non-Christian places of worship within the Town.” Id., at 197.
 Cite as: 572 U. S. ____ (2014) 3
ALITO, J., concurring
As a result of this procedure, for some time all the pray­
ers at the beginning of town board meetings were offered
by Christian clergy, and many of these prayers were dis­
tinctively Christian. But respondents do not claim that
the list was attributable to religious bias or favoritism,
and the Court of Appeals acknowledged that the town had
“no religious animus.” 681 F.3d 20, 32 (CA2 2012).
For some time, the town’s practice does not appear to
have elicited any criticism, but when complaints were
received, the town made it clear that it would permit any
interested residents, including nonbelievers, to provide an
invocation, and the town has never refused a request to
offer an invocation. Id., at 23, 25; 732 F. Supp. 2d, at 197.
The most recent list in the record of persons available to
provide an invocation includes representatives of many
non-Christian faiths. App. in No. 10–3635 (CA2), pp.
A1053–A1055 (hereinafter CA2 App.).
Meetings of the Greece Town Board appear to have been
similar to most other town council meetings across the
country. The prayer took place at the beginning of the
meetings. The board then conducted what might be
termed the “legislative” portion of its agenda, during
which residents were permitted to address the board.
After this portion of the meeting, a separate stage of the
meetings was devoted to such matters as formal requests
for variances. See Brief for Respondents 5–6; CA2 App.
A929–A930; e.g., CA2 App. A1058, A1060.
No prayer occurred before this second part of the pro­
ceedings, and therefore I do not understand this case to
involve the constitutionality of a prayer prior to what may
be characterized as an adjudicatory proceeding. The
prayer preceded only the portion of the town board meet­
ing that I view as essentially legislative. While it is true
that the matters considered by the board during this
initial part of the meeting might involve very specific
questions, such as the installation of a traffic light or stop
4 TOWN OF GREECE v. GALLOWAY
ALITO, J., concurring
sign at a particular intersection, that does not transform
the nature of this part of the meeting.
II
I turn now to the narrow aspect of the principal dissent,
and what we find here is that the principal dissent’s objec­
tion, in the end, is really quite niggling. According to the
principal dissent, the town could have avoided any consti­
tutional problem in either of two ways.
A
First, the principal dissent writes, “[i]f the Town Board
had let its chaplains know that they should speak in non­
sectarian terms, common to diverse religious groups, then
no one would have valid grounds for complaint.” Post, at
18–19. “Priests and ministers, rabbis and imams,” the
principal dissent continues, “give such invocations all the
time” without any great difficulty. Post, at 19.
Both Houses of Congress now advise guest chaplains
that they should keep in mind that they are addressing
members from a variety of faith traditions, and as a mat­
ter of policy, this advice has much to recommend it. But
any argument that nonsectarian prayer is constitutionally
required runs headlong into a long history of contrary
congressional practice. From the beginning, as the Court
notes, many Christian prayers were offered in the House
and Senate, see ante, at 7, and when rabbis and other non-
Christian clergy have served as guest chaplains, their
prayers have often been couched in terms particular to
their faith traditions.3
——————
3 For example, when a rabbi first delivered a prayer at a session of
the House of Representatives in 1860, he appeared “in full rabbinic
dress, ‘piously bedecked in a white tallit and a large velvet skullcap,’ ”
and his prayer “invoked several uniquely Jewish themes and repeated
the Biblical priestly blessing in Hebrew.” See Brief for Nathan Lewin
as Amicus Curiae 9. Many other rabbis have given distinctively Jewish
prayers, id., at 10, and n. 3, and distinctively Islamic, Buddhist, and
Cite as: 572 U. S. ____ (2014) 5
ALITO, J., concurring
Not only is there no historical support for the proposi­
tion that only generic prayer is allowed, but as our country
has become more diverse, composing a prayer that is
acceptable to all members of the community who hold
religious beliefs has become harder and harder. It was
one thing to compose a prayer that is acceptable to both
Christians and Jews; it is much harder to compose a prayer
that is also acceptable to followers of Eastern religions
that are now well represented in this country. Many local
clergy may find the project daunting, if not impossible,
and some may feel that they cannot in good faith deliver
such a vague prayer.
In addition, if a town attempts to go beyond simply
recommending that a guest chaplain deliver a prayer that
is broadly acceptable to all members of a particular com­
munity (and the groups represented in different communi­
ties will vary), the town will inevitably encounter sensitive
problems. Must a town screen and, if necessary, edit
prayers before they are given? If prescreening is not
required, must the town review prayers after they are
delivered in order to determine if they were sufficiently
generic? And if a guest chaplain crosses the line, what
must the town do? Must the chaplain be corrected on the
spot? Must the town strike this chaplain (and perhaps his
or her house of worship) from the approved list?
B
If a town wants to avoid the problems associated with
this first option, the principal dissent argues, it has an­
other choice: It may “invit[e] clergy of many faiths.” Post,
at 19. “When one month a clergy member refers to Jesus,
and the next to Allah or Jehovah,” the principal dissent
explains, “the government does not identify itself with one
religion or align itself with that faith’s citizens, and the
——————
Hindu prayers have also been delivered, see ante, at 10–11.
6 TOWN OF GREECE v. GALLOWAY
ALITO, J., concurring
effect of even sectarian prayer is transformed.” Ibid.
If, as the principal dissent appears to concede, such a
rotating system would obviate any constitutional prob­
lems, then despite all its high rhetoric, the principal dis­
sent’s quarrel with the town of Greece really boils down to
this: The town’s clerical employees did a bad job in compil­
ing the list of potential guest chaplains. For that is really
the only difference between what the town did and what
the principal dissent is willing to accept. The Greece
clerical employee drew up her list using the town directory
instead of a directory covering the entire greater Roches­
ter area. If the task of putting together the list had been
handled in a more sophisticated way, the employee in
charge would have realized that the town’s Jewish resi­
dents attended synagogues on the Rochester side of the
border and would have added one or more synagogues to
the list. But the mistake was at worst careless, and it was
not done with a discriminatory intent. (I would view this
case very differently if the omission of these synagogues
were intentional.)
The informal, imprecise way in which the town lined up
guest chaplains is typical of the way in which many things
are done in small and medium-sized units of local govern­
ment. In such places, the members of the governing body
almost always have day jobs that occupy much of their
time. The town almost never has a legal office and instead
relies for legal advice on a local attorney whose practice is
likely to center on such things as land-use regulation,
contracts, and torts. When a municipality like the town of
Greece seeks in good faith to emulate the congressional
practice on which our holding in Marsh v. Chambers, 463
U.S. 783 (1983), was largely based, that municipality
should not be held to have violated the Constitution sim­
ply because its method of recruiting guest chaplains lacks
the demographic exactitude that might be regarded as
optimal.
Cite as: 572 U. S. ____ (2014) 7
ALITO, J., concurring
The effect of requiring such exactitude would be to
pressure towns to forswear altogether the practice of
having a prayer before meetings of the town council.
Many local officials, puzzled by our often puzzling Estab­
lishment Clause jurisprudence and terrified of the legal
fees that may result from a lawsuit claiming a constitu­
tional violation, already think that the safest course is to
ensure that local government is a religion-free zone.
Indeed, the Court of Appeals’ opinion in this case advised
towns that constitutional difficulties “may well prompt
municipalities to pause and think carefully before adopt­
ing legislative prayer.” 681 F.3d, at 34. But if, as prece­
dent and historic practice make clear (and the principal
dissent concedes), prayer before a legislative session is not
inherently inconsistent with the First Amendment, then a
unit of local government should not be held to have violated
the First Amendment simply because its procedure for
lining up guest chaplains does not comply in all respects
with what might be termed a “best practices” standard.
III
While the principal dissent, in the end, would demand
no more than a small modification in the procedure that
the town of Greece initially followed, much of the rhetoric
in that opinion sweeps more broadly. Indeed, the logical
thrust of many of its arguments is that prayer is never
permissible prior to meetings of local government legisla­
tive bodies. At Greece Town Board meetings, the principal
dissent pointedly notes, ordinary citizens (and even chil­
dren!) are often present. Post, at 10–11. The guest chap­
lains stand in front of the room facing the public. “[T]he
setting is intimate,” and ordinary citizens are permitted to
speak and to ask the board to address problems that have
a direct effect on their lives. Post, at 11. The meetings are
“occasions for ordinary citizens to engage with and peti­
tion their government, often on highly individualized
8 TOWN OF GREECE v. GALLOWAY
ALITO, J., concurring
matters.” Post, at 9. Before a session of this sort, the
principal dissent argues, any prayer that is not acceptable
to all in attendance is out of bounds.
The features of Greece meetings that the principal
dissent highlights are by no means unusual.4 It is com­
mon for residents to attend such meetings, either to speak
on matters on the agenda or to request that the town
address other issues that are important to them. Nor is
there anything unusual about the occasional attendance of
students, and when a prayer is given at the beginning of
such a meeting, I expect that the chaplain generally
stands at the front of the room and faces the public. To do
otherwise would probably be seen by many as rude. Fi-
nally, although the principal dissent, post, at 13, attaches
importance to the fact that guest chaplains in the town of
Greece often began with the words “Let us pray,” that is
also commonplace and for many clergy, I suspect, almost
reflexive.5 In short, I see nothing out of the ordinary
about any of the features that the principal dissent notes.
Therefore, if prayer is not allowed at meetings with those
characteristics, local government legislative bodies, unlike
their national and state counterparts, cannot begin their
meetings with a prayer. I see no sound basis for drawing
such a distinction.
——————
4 See,
e.g., prayer practice of Saginaw City Council in Michigan, de­
scribed in Letter from Freedom from Religion Foundation to City
Manager, Saginaw City Council (Jan. 31, 2014), online at
http://media.mlive.com/saginawnews_impact/other/Saginaw%20prayer
%20at%20meetings%20letter.pdf (all Internet materials as visited May
2, 2014, and available in Clerk of Court’s case file); prayer practice of
Cobb County commissions in Georgia, described in Pelphrey v. Cobb
County, 410 F. Supp. 2d 1324 (ND Ga. 2006).
5 For example, at the most recent Presidential inauguration, a minis­
ter faced the assembly of onlookers on the National Mall and began
with those very words. 159 Cong. Rec. S183, S186 (Jan. 22, 2013).
Cite as: 572 U. S. ____ (2014)
9
ALITO, J., concurring
IV
The principal dissent claims to accept the Court’s deci­
sion in Marsh v. Chambers, which upheld the constitu­
tionality of the Nebraska Legislature’s practice of prayer
at the beginning of legislative sessions, but the principal
dissent’s acceptance of Marsh appears to be predicated on
the view that the prayer at issue in that case was little
more than a formality to which the legislators paid scant
attention. The principal dissent describes this scene: A
session of the state legislature begins with or without
most members present; a strictly nonsectarian prayer is
recited while some legislators remain seated; and few
members of the public are exposed to the experience. Post,
at 8–9. This sort of perfunctory and hidden-away prayer,
the principal dissent implies, is all that Marsh and the
First Amendment can tolerate.
It is questionable whether the principal dissent accu­
rately describes the Nebraska practice at issue in Marsh,6
but what is important is not so much what happened in
Nebraska in the years prior to Marsh, but what happened
before congressional sessions during the period leading up
to the adoption of the First Amendment. By that time,
prayer before legislative sessions already had an impres­
sive pedigree, and it is important to recall that history and
the events that led to the adoption of the practice.
The principal dissent paints a picture of “morning in
——————
6 See generally Brief for Robert E. Palmer as Amicus Curiae (Ne­
braska Legislature chaplain at issue in Marsh); e.g., id., at 11 (describing
his prayers as routinely referring “to Christ, the Bible, [and] holy
days”). See also Chambers v. Marsh, 504 F. Supp. 585, 590, n. 12 (Neb.
1980) (“A rule of the Nebraska Legislature requires that ‘every member
shall be present within the Legislative Chamber during the meetings of
the Legislature . . . unless excused . . . .’ Unless the excuse for nonat­
tendance is deemed sufficient by the legislature, the ‘presence of any
member may be compelled, if necessary, by sending the Sergeant at
Arms’ ” (alterations in original)).
10 TOWN OF GREECE v. GALLOWAY
ALITO, J., concurring
Nebraska” circa 1983, see post, at 9, but it is more instruc­
tive to consider “morning in Philadelphia,” September
1774. The First Continental Congress convened in Phila­
delphia, and the need for the 13 colonies to unite was
imperative. But “[m]any things set colony apart from
colony,” and prominent among these sources of division
was religion.7 “Purely as a practical matter,” however, the
project of bringing the colonies together required that
these divisions be overcome.8
Samuel Adams sought to bridge these differences by
prodding a fellow Massachusetts delegate to move to open
the session with a prayer.9 As John Adams later recounted,
this motion was opposed on the ground that the dele-
gates were “so divided in religious sentiments, some Epis­
copalians, some Quakers, some Anabaptists, some
Presbyterians, and some Congregationalists, that [they]
could not join in the same act of worship.”10 In response,
Samuel Adams proclaimed that “he was no bigot, and
could hear a prayer from a gentleman of piety and virtue,
who was at the same time a friend to his country.”11 Put­
ting aside his personal prejudices,12 he moved to invite a
local Anglican minister, Jacob Duché, to lead the first
prayer.13
The following morning, Duché appeared in full “pontifi­
——————
7 G. Wills, Inventing America: Jefferson’s Declaration of Independ­
ence 46 (1978).
8 N. Cousins, In God We Trust: The Religious Beliefs and Ideas of the
American Founding Fathers 4–5, 13 (1958).
9 M. Puls, Samuel Adams: Father of the American Revolution 160
(2006).
10 Letter to Abigail Adams (Sept. 16, 1774), in C. Adams, Familiar
Letters of John Adams and His Wife Abigail Adams, During the Revo­
lution 37 (1876).
11 Ibid.
12 See G. Wills, supra, at 46; J. Miller, Sam Adams 85, 87 (1936);
I. Stoll, Samuel Adams: A Life 7, 134–135 (2008).
13 C. Adams, supra, at 37.
Cite as: 572 U. S. ____ (2014) 11
ALITO, J., concurring
cals” and delivered both the Anglican prayers for the day
and an extemporaneous prayer.14 For many of the dele­
gates—members of religious groups that had come to
America to escape persecution in Britain—listening to a
distinctively Anglican prayer by a minister of the Church
of England represented an act of notable ecumenism. But
Duché’s prayer met with wide approval—John Adams
wrote that it “filled the bosom of every man” in attend­
ance15—and the practice was continued. This first con­
gressional prayer was emphatically Christian, and it was
neither an empty formality nor strictly nondenominational.16
But one of its purposes, and presumably one of its
effects, was not to divide, but to unite.
It is no wonder, then, that the practice of beginning
congressional sessions with a prayer was continued after
the Revolution ended and the new Constitution was
adopted. One of the first actions taken by the new Con­
gress when it convened in 1789 was to appoint chaplains
for both Houses. The first Senate chaplain, an Episcopa-
lian, was appointed on April 25, 1789, and the first House
chaplain, a Presbyterian, was appointed on May 1.17
Three days later, Madison announced that he planned to
introduce proposed constitutional amendments to protect
individual rights; on June 8, 1789, those amendments
were introduced; and on September 26, 1789, the amend­
ments were approved to be sent to the States for ratifica­
tion.18 In the years since the adoption of the First
——————
14 Ibid.
15 Ibid.; see W. Wells, 2 The Life and Public Services of Samuel
Adams 222–223 (1865); J. Miller, supra, at 320; E. Burnett, The Conti­
nental Congress 40 (1941); M. Puls, supra, at 161.
16 First Prayer of the Continental Congress, 1774, online at http://
chaplain.house.gov/archive/continental.html.
17 1 Annals of Cong. 24–25 (1789); R. Cord, Separation of Church and
State: Historical Fact and Current Fiction 23 (1982).
18 1 Annals of Cong. 247, 424; R. Labunski, James Madison and the
Struggle for the Bill of Rights 240–241 (2006).
12 TOWN OF GREECE v. GALLOWAY
ALITO, J., concurring
Amendment, the practice of prayer before sessions of the
House and Senate has continued, and opening prayers
from a great variety of faith traditions have been offered.
This Court has often noted that actions taken by the
First Congress are presumptively consistent with the Bill
of Rights, see, e.g., Harmelin v. Michigan, 501 U.S. 957,
980 (1991), Carroll v. United States, 267 U.S. 132, 150–
152 (1925), and this principle has special force when it
comes to the interpretation of the Establishment Clause.
This Court has always purported to base its Establish­
ment Clause decisions on the original meaning of that
provision. Thus, in Marsh, when the Court was called
upon to decide whether prayer prior to sessions of a state
legislature was consistent with the Establishment Clause,
we relied heavily on the history of prayer before sessions
of Congress and held that a state legislature may follow a
similar practice. See 463 U.S., at 786–792.
There can be little doubt that the decision in Marsh
reflected the original understanding of the First Amend­
ment. It is virtually inconceivable that the First Congress,
having appointed chaplains whose responsibilities promi­
nently included the delivery of prayers at the beginning of
each daily session, thought that this practice was incon­
sistent with the Establishment Clause. And since this
practice was well established and undoubtedly well
known, it seems equally clear that the state legislatures
that ratified the First Amendment had the same under­
standing. In the case before us, the Court of Appeals
appeared to base its decision on one of the Establishment
Clause “tests” set out in the opinions of this Court, see 681
F.3d, at 26, 30, but if there is any inconsistency between
any of those tests and the historic practice of legislative
prayer, the inconsistency calls into question the validity of
the test, not the historic practice.
Cite as: 572 U. S. ____ (2014)
13
ALITO, J., concurring
V
This brings me to my final point. I am troubled by the
message that some readers may take from the principal
dissent’s rhetoric and its highly imaginative hypotheticals.
For example, the principal dissent conjures up the image
of a litigant awaiting trial who is asked by the presiding
judge to rise for a Christian prayer, of an official at a
polling place who conveys the expectation that citizens
wishing to vote make the sign of the cross before casting
their ballots, and of an immigrant seeking naturalization
who is asked to bow her head and recite a Christian
prayer. Although I do not suggest that the implication is
intentional, I am concerned that at least some readers will
take these hypotheticals as a warning that this is where
today’s decision leads—to a country in which religious
minorities are denied the equal benefits of citizenship.
Nothing could be further from the truth. All that the
Court does today is to allow a town to follow a practice
that we have previously held is permissible for Congress
and state legislatures. In seeming to suggest otherwise,
the principal dissent goes far astray.
Cite as: 572 U. S. ____ (2014) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–696
_________________
TOWN OF GREECE, NEW YORK, PETITIONER v.
SUSAN GALLOWAY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 5, 2014]
JUSTICE THOMAS, with whom JUSTICE SCALIA joins as
to Part II, concurring in part and concurring in the
judgment.
Except for Part II–B, I join the opinion of the Court,
which faithfully applies Marsh v. Chambers, 463 U.S. 783
(1983). I write separately to reiterate my view that the
Establishment Clause is “best understood as a federalism
provision,” Elk Grove Unified School Dist. v. Newdow, 542
U.S. 1, 50 (2004) (THOMAS, J., concurring in judgment),
and to state my understanding of the proper “coercion”
analysis.
I
The Establishment Clause provides that “Congress shall
make no law respecting an establishment of religion.”
U. S. Const., Amdt. 1. As I have explained before, the text
and history of the Clause “resis[t] incorporation” against
the States. Newdow, supra, at 45–46; see also Van Orden
v. Perry, 545 U.S. 677, 692–693 (2005) (THOMAS, J., con-
curring); Zelman v. Simmons-Harris, 536 U.S. 639, 677–
680 (2002) (same). If the Establishment Clause is not
incorporated, then it has no application here, where only
municipal action is at issue.
As an initial matter, the Clause probably prohibits
Congress from establishing a national religion. Cf. D.
2 TOWN OF GREECE v. GALLOWAY
Opinion of THOMAS, J.
Drakeman, Church, State, and Original Intent 260–262
(2010). The text of the Clause also suggests that Congress
“could not interfere with state establishments, notwith-
standing any argument that could be made based on
Congress’ power under the Necessary and Proper Clause.”
Newdow, supra, at 50 (opinion of THOMAS, J.). The lan-
guage of the First Amendment (“Congress shall make no
law”) “precisely tracked and inverted the exact wording” of
the Necessary and Proper Clause (“Congress shall have
power . . . to make all laws which shall be necessary and
proper . . . ”), which was the subject of fierce criticism by
Anti-Federalists at the time of ratification. A. Amar, The
Bill of Rights 39 (1998) (hereinafter Amar); see also Natel-
son, The Framing and Adoption of the Necessary and
Proper Clause, in The Origins of the Necessary and Proper
Clause 84, 94–96 (G. Lawson, G. Miller, R. Natelson,
& G. Seidman eds. 2010) (summarizing Anti-Federalist
claims that the Necessary and Proper Clause would ag-
grandize the powers of the Federal Government). That
choice of language—“Congress shall make no law”—
effectively denied Congress any power to regulate state
establishments.
Construing the Establishment Clause as a federalism
provision accords with the variety of church-state ar-
rangements that existed at the Founding. At least six
States had established churches in 1789. Amar 32–33.
New England States like Massachusetts, Connecticut, and
New Hampshire maintained local-rule establishments
whereby the majority in each town could select the minis-
ter and religious denomination (usually Congregational-
ism, or “Puritanism”). McConnell, Establishment and
Disestablishment at the Founding, Part I: Establishment of
Religion, 44 Wm. & Mary L. Rev. 2105, 2110 (2003); see
also L. Levy, The Establishment Clause: Religion and the
First Amendment 29–51 (1994) (hereinafter Levy). In the
South, Maryland, South Carolina, and Georgia eliminated
Cite as: 572 U. S. ____ (2014) 3
Opinion of THOMAS, J.
their exclusive Anglican establishments following the
American Revolution and adopted general establishments,
which permitted taxation in support of all Christian
churches (or, as in South Carolina, all Protestant churches).
See Levy 52–58; Amar 32–33. Virginia, by contrast, had
recently abolished its official state establishment and
ended direct government funding of clergy after a legisla-
tive battle led by James Madison. See T. Buckley, Church
and State in Revolutionary Virginia, 1776–1787, pp. 155–
164 (1977). Other States—principally Rhode Island,
Pennsylvania, and Delaware, which were founded by
religious dissenters—had no history of formal establish-
ments at all, although they still maintained religious tests
for office. See McConnell, The Origins and Historical
Understanding of Free Exercise of Religion, 103 Harv.
L. Rev. 1409, 1425–1426, 1430 (1990).
The import of this history is that the relationship be-
tween church and state in the fledgling Republic was far
from settled at the time of ratification. See Muñoz, The
Original Meaning of the Establishment Clause and the
Impossibility of Its Incorporation, 8 U. Pa. J. Constitu-
tional L. 585, 605 (2006). Although the remaining state
establishments were ultimately dismantled—Massachusetts,
the last State to disestablish, would do so in 1833, see Levy
42—that outcome was far from assured when the Bill of
Rights was ratified in 1791. That lack of consensus sug-
gests that the First Amendment was simply agnostic on
the subject of state establishments; the decision to estab-
lish or disestablish religion was reserved to the States.
Amar 41.
The Federalist logic of the original Establishment
Clause poses a special barrier to its mechanical incorpora-
tion against the States through the Fourteenth Amend-
ment. See id., at 33. Unlike the Free Exercise Clause,
which “plainly protects individuals against congressional
interference with the right to exercise their religion,” the
4 TOWN OF GREECE v. GALLOWAY
Opinion of THOMAS, J.
Establishment Clause “does not purport to protect indi-
vidual rights.” Newdow, 542 U.S., at 50 (opinion of
THOMAS, J.). Instead, the States are the particular benefi-
ciaries of the Clause. Incorporation therefore gives rise to
a paradoxical result: Applying the Clause against the
States eliminates their right to establish a religion free
from federal interference, thereby “prohibit[ing] exactly
what the Establishment Clause protected.” Id., at 51; see
Amar 33–34.
Put differently, the structural reasons that counsel
against incorporating the Tenth Amendment also apply to
the Establishment Clause. Id., at 34. To my knowledge,
no court has ever suggested that the Tenth Amendment,
which “reserve[s] to the States” powers not delegated to
the Federal Government, could or should be applied
against the States. To incorporate that limitation would
be to divest the States of all powers not specifically dele-
gated to them, thereby inverting the original import of the
Amendment. Incorporating the Establishment Clause has
precisely the same effect.
The most cogent argument in favor of incorporation may
be that, by the time of Reconstruction, the framers of the
Fourteenth Amendment had come to reinterpret the Es-
tablishment Clause (notwithstanding its Federalist ori-
gins) as expressing an individual right. On this question,
historical evidence from the 1860’s is mixed. Congressmen
who catalogued the personal rights protected by the First
Amendment commonly referred to speech, press, petition,
and assembly, but not to a personal right of nonestablish-
ment; instead, they spoke only of “ ‘free exercise’ ” or
“ ‘freedom of conscience.’ ” Amar 253, and 385, n. 91 (col-
lecting sources). There may be reason to think these lists
were abbreviated, and silence on the issue is not disposi-
tive. See Lash, The Second Adoption of the Establishment
Clause: The Rise of the Nonestablishment Principle, 27
Ariz. St. L. J. 1085, 1141–1145 (1995); but cf. S. Smith,
Cite as: 572 U. S. ____ (2014) 5
Opinion of THOMAS, J.
Foreordained Failure: The Quest for a Constitutional
Principle of Religious Freedom 50–52 (1995). Given the
textual and logical difficulties posed by incorporation,
however, there is no warrant for transforming the mean-
ing of the Establishment Clause without a firm historical
foundation. See Newdow, supra, at 51 (opinion of
THOMAS, J.). The burden of persuasion therefore rests
with those who claim that the Clause assumed a different
meaning upon adoption of the Fourteenth Amendment.1
II
Even if the Establishment Clause were properly incor-
porated against the States, the municipal prayers at issue
in this case bear no resemblance to the coercive state
establishments that existed at the founding. “The coercion
that was a hallmark of historical establishments of reli-
gion was coercion of religious orthodoxy and of financial
support by force of law and threat of penalty.” Lee v.
Weisman, 505 U.S. 577, 640 (1992) (SCALIA, J., dissent-
——————
1 This Court has never squarely addressed these barriers to the in-
corporation of the Establishment Clause. When the issue was first
presented in Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), the
Court casually asserted that “the Fourteenth Amendment [has been]
interpreted to make the prohibitions of the First applicable to state
action abridging religious freedom. There is every reason to give the
same application and broad interpretation to the ‘establishment of
religion’ clause.” Id., at 15 (footnote omitted). The cases the Court
cited in support of that proposition involved the Free Exercise Clause—
which had been incorporated seven years earlier, in Cantwell v. Con-
necticut, 310 U.S. 296, 303 (1940)—not the Establishment Clause. 330
U.S., at 15, n. 22 (collecting cases). Thus, in the space of a single
paragraph and a nonresponsive string citation, the Everson Court glibly
effected a sea change in constitutional law. The Court’s inattention to
these doctrinal questions might be explained, although not excused, by
the rise of popular conceptions about “separation of church and state”
as an “American” constitutional right. See generally P. Hamburger,
Separation of Church and State 454–463 (2002); see also id., at 391–
454 (discussing the role of nativist sentiment in the campaign for
“separation” as an American ideal).
6 TOWN OF GREECE v. GALLOWAY
Opinion of THOMAS, J.
ing); see also Perry, 545 U.S., at 693–694 (THOMAS, J.,
concurring); Cutter v. Wilkinson, 544 U.S. 709, 729 (2005)
(THOMAS, J., concurring); Newdow, supra, at 52 (opinion of
THOMAS, J.). In a typical case, attendance at the estab-
lished church was mandatory, and taxes were levied to
generate church revenue. McConnell, Establishment and
Disestablishment, at 2144–2146, 2152–2159. Dissenting
ministers were barred from preaching, and political partic-
ipation was limited to members of the established church.
Id., at 2161–2168, 2176–2180.
This is not to say that the state establishments in exist-
ence when the Bill of Rights was ratified were uniform.
As previously noted, establishments in the South were
typically governed through the state legislature or State
Constitution, while establishments in New England were
administered at the municipal level. See supra, at 2–3.
Notwithstanding these variations, both state and local
forms of establishment involved “actual legal coercion,”
Newdow, supra, at 52 (opinion of THOMAS, J.): They exer-
cised government power in order to exact financial support
of the church, compel religious observance, or control
religious doctrine.
None of these founding-era state establishments re-
mained at the time of Reconstruction. But even assuming
that the framers of the Fourteenth Amendment recon-
ceived the nature of the Establishment Clause as a con-
straint on the States, nothing in the history of the inter-
vening period suggests a fundamental transformation in
their understanding of what constituted an establishment.
At a minimum, there is no support for the proposition that
the framers of the Fourteenth Amendment embraced
wholly modern notions that the Establishment Clause is
violated whenever the “reasonable observer” feels “subtle
pressure,” ante, at 18, 19, or perceives governmental “en-
dors[ement],” ante, at 5–6. For example, of the 37 States
in existence when the Fourteenth Amendment was rati-
Cite as: 572 U. S. ____ (2014) 7
Opinion of THOMAS, J.
fied, 27 State Constitutions “contained an explicit refer-
ence to God in their preambles.” Calabresi & Agudo,
Individual Rights Under State Constitutions When the
Fourteenth Amendment Was Ratified in 1868: What
Rights Are Deeply Rooted in American History and Tradi-
tion?, 87 Tex. L. Rev. 7, 12, 37 (2008). In addition to the
preamble references, 30 State Constitutions contained
other references to the divine, using such phrases as “ ‘Al-
mighty God,’ ” “ ‘[O]ur Creator,’ ” and “ ‘Sovereign Ruler of
the Universe.’ ” Id., at 37, 38, 39, n. 104. Moreover, the
state constitutional provisions that prohibited religious
“comp[ulsion]” made clear that the relevant sort of com-
pulsion was legal in nature, of the same type that had
characterized founding-era establishments.2 These provi-
sions strongly suggest that, whatever nonestablishment
principles existed in 1868, they included no concern for the
finer sensibilities of the “reasonable observer.”
Thus, to the extent coercion is relevant to the Estab-
lishment Clause analysis, it is actual legal coercion that
counts—not the “subtle coercive pressures” allegedly felt
by respondents in this case, ante, at 9. The majority
properly concludes that “[o]ffense . . . does not equate to
——————
2 See, e.g., Del. Const., Art. I, §1 (1831) (“[N]o man shall, or ought to
be compelled to attend any religious worship, to contribute to the
erection or support of any place of worship, or to the maintenance of
any ministry, against his own free will and consent”); Me. Const., Art. I,
§3 (1820) (“[N]o one shall be hurt, molested or restrained in his person,
liberty or estate, for worshiping God in the manner and season most
agreeable to the dictates of his own conscience”); Mo. Const., Art. I, §10
(1865) (“[N]o person can be compelled to erect, support, or attend any
place of worship, or maintain any minister of the Gospel or teacher of
religion”); R. I. Const., Art. I, §3 (1842) (“[N]o man shall be compelled to
frequent or to support any religious worship, place, or ministry what-
ever, except in fulfillment of his own voluntary contract”); Vt. Const., Ch.
I, §3 (1777) (“[N]o man ought, or of right can be compelled to attend any
religious worship, or erect, or support any place of worship, or maintain
any minister, contrary to the dictates of his conscience”).
8 TOWN OF GREECE v. GALLOWAY
Opinion of THOMAS, J.
coercion,” since “[a]dults often encounter speech they find
disagreeable[,] and an Establishment Clause violation is
not made out any time a person experiences a sense of
affront from the expression of contrary religious views in a
legislative forum.” Ante, at 21. I would simply add, in
light of the foregoing history of the Establishment Clause,
that “[p]eer pressure, unpleasant as it may be, is not
coercion” either. Newdow, 542 U.S., at 49 (opinion of
THOMAS, J.).
Cite as: 572 U. S. ____ (2014) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–696
_________________
TOWN OF GREECE, NEW YORK, PETITIONER v.
SUSAN GALLOWAY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 5, 2014]
JUSTICE BREYER, dissenting.
As we all recognize, this is a “fact-sensitive” case. Ante,
at 19 (opinion of KENNEDY, J.); see also post, at 20
(KAGAN, J., dissenting); 681 F.3d 20, 34 (CA2 2012) (ex-
plaining that the Court of Appeals’ holding follows from
the “totality of the circumstances”). The Court of Appeals
did not believe that the Constitution forbids legislative
prayers that incorporate content associated with a particu-
lar denomination. Id., at 28. Rather, the court’s holding
took that content into account simply because it indicated
that the town had not followed a sufficiently inclusive
“prayer-giver selection process.” Id., at 30. It also took
into account related “actions (and inactions) of prayer-
givers and town officials.” Ibid. Those actions and inac-
tions included (1) a selection process that led to the selec-
tion of “clergy almost exclusively from places of worship
located within the town’s borders,” despite the likelihood
that significant numbers of town residents were members
of congregations that gather just outside those borders; (2)
a failure to “infor[m] members of the general public that
volunteers” would be acceptable prayer givers; and (3) a
failure to “infor[m] prayer-givers that invocations were not
to be exploited as an effort to convert others to the partic-
ular faith of the invocational speaker, nor to disparage
any faith or belief different than that of the invoca-
2 TOWN OF GREECE v. GALLOWAY
BREYER, J., dissenting
tional speaker.” Id., at 31–32 (internal quotation marks
omitted).
The Court of Appeals further emphasized what it was
not holding. It did not hold that “the town may not open
its public meetings with a prayer,” or that “any prayers
offered in this context must be blandly ‘nonsectarian.’ ”
Id., at 33. In essence, the Court of Appeals merely held
that the town must do more than it had previously done to
try to make its prayer practices inclusive of other faiths.
And it did not prescribe a single constitutionally required
method for doing so.
In my view, the Court of Appeals’ conclusion and its
reasoning are convincing. JUSTICE KAGAN’s dissent is
consistent with that view, and I join it. I also here empha-
size several factors that I believe underlie the conclusion
that, on the particular facts of this case, the town’s prayer
practice violated the Establishment Clause.
First, Greece is a predominantly Christian town, but it
is not exclusively so. A map of the town’s houses of wor-
ship introduced in the District Court shows many Chris-
tian churches within the town’s limits. It also shows a
Buddhist temple within the town and several Jewish
synagogues just outside its borders, in the adjacent city of
Rochester, New York. Id., at 24. Yet during the more
than 120 monthly meetings at which prayers were deliv-
ered during the record period (from 1999 to 2010), only
four prayers were delivered by non-Christians. And all of
these occurred in 2008, shortly after the plaintiffs began
complaining about the town’s Christian prayer practice
and nearly a decade after that practice had commenced.
See post, at 14, 21.
To be precise: During 2008, two prayers were delivered
by a Jewish layman, one by the chairman of a Baha’i
congregation, and one by a Wiccan priestess. The Jewish
and Wiccan prayer givers were invited only after they
reached out to the town to inquire about giving an invoca-
Cite as: 572 U. S. ____ (2014) 3
BREYER, J., dissenting
tion. The town apparently invited the Baha’i chairman on
its own initiative. The inclusivity of the 2008 meetings,
which contrasts starkly with the exclusively single-
denomination prayers every year before and after, is
commendable. But the Court of Appeals reasonably de-
cided not to give controlling weight to that inclusivity, for it
arose only in response to the complaints that presaged this
litigation, and it did not continue into the following years.
Second, the town made no significant effort to inform
the area’s non-Christian houses of worship about the
possibility of delivering an opening prayer. See post, at
21. Beginning in 1999, when it instituted its practice of
opening its monthly board meetings with prayer, Greece
selected prayer givers as follows: Initially, the town’s
employees invited clergy from each religious organization
listed in a “Community Guide” published by the Greece
Chamber of Commerce. After that, the town kept a list of
clergy who had accepted invitations and reinvited those
clergy to give prayers at future meetings. From time to
time, the town supplemented this list in response to re-
quests from citizens and to new additions to the Commu-
nity Guide and a town newspaper called the Greece Post.
The plaintiffs do not argue that the town intentionally
discriminated against non-Christians when choosing
whom to invite, 681 F.3d, at 26, and the town claims,
plausibly, that it would have allowed anyone who asked to
give an invocation to do so. Rather, the evident reasons
why the town consistently chose Christian prayer givers
are that the Buddhist and Jewish temples mentioned
above were not listed in the Community Guide or the
Greece Post and that the town limited its list of clergy
almost exclusively to representatives of houses of worship
situated within Greece’s town limits (again, the Buddhist
temple on the map was within those limits, but the syna-
gogues were just outside them). Id., at 24, 31.
Third, in this context, the fact that nearly all of the
4 TOWN OF GREECE v. GALLOWAY
BREYER, J., dissenting
prayers given reflected a single denomination takes on
significance. That significance would have been the same
had all the prayers been Jewish, or Hindu, or Buddhist, or
of any other denomination. The significance is that, in a
context where religious minorities exist and where more
could easily have been done to include their participation,
the town chose to do nothing. It could, for example, have
posted its policy of permitting anyone to give an invocation
on its website, greeceny.gov, which provides dates and
times of upcoming town board meetings along with
minutes of prior meetings. It could have announced inclu-
sive policies at the beginning of its board meetings, just
before introducing the month’s prayer giver. It could have
provided information to those houses of worship of all
faiths that lie just outside its borders and include citizens
of Greece among their members. Given that the town
could easily have made these or similar efforts but chose
not to, the fact that all of the prayers (aside from the 2008
outliers) were given by adherents of a single religion re-
flects a lack of effort to include others. And that is what I
take to be a major point of JUSTICE KAGAN’s related dis-
cussion. See post, at 2–4, 9, 14–15, 21–23.
Fourth, the fact that the board meeting audience in-
cluded citizens with business to conduct also contributes
to the importance of making more of an effort to include
members of other denominations. It does not, however,
automatically change the nature of the meeting from one
where an opening prayer is permissible under the Estab-
lishment Clause to one where it is not. Cf. post, at 8–14,
16–17, 20.
Fifth, it is not normally government’s place to rewrite,
to parse, or to critique the language of particular prayers.
And it is always possible that members of one religious
group will find that prayers of other groups (or perhaps
even a moment of silence) are not compatible with their
faith. Despite this risk, the Constitution does not forbid
Cite as: 572 U. S. ____ (2014) 5
BREYER, J., dissenting
opening prayers. But neither does the Constitution forbid
efforts to explain to those who give the prayers the nature
of the occasion and the audience.
The U. S. House of Representatives, for example, pro-
vides its guest chaplains with the following guidelines,
which are designed to encourage the sorts of prayer that
are consistent with the purpose of an invocation for a
government body in a religiously pluralistic Nation:
“The guest chaplain should keep in mind that the
House of Representatives is comprised of Members of
many different faith traditions.
“The length of the prayer should not exceed 150
words.
“The prayer must be free from personal political views
or partisan politics, from sectarian controversies, and
from any intimations pertaining to foreign or domestic
policy.” App. to Brief for Respondents 2a.
The town made no effort to promote a similarly inclusive
prayer practice here. See post, at 21–22.
As both the Court and JUSTICE KAGAN point out, we are
a Nation of many religions. Ante, at 10–11; post, at 1–2,
18. And the Constitution’s Religion Clauses seek to “pro-
tec[t] the Nation’s social fabric from religious conflict.”
Zelman v. Simmons-Harris, 536 U.S. 639, 717 (2002)
(BREYER, J., dissenting). The question in this case is
whether the prayer practice of the town of Greece, by
doing too little to reflect the religious diversity of its citi-
zens, did too much, even if unintentionally, to promote the
“political division along religious lines” that “was one of
the principal evils against which the First Amendment
was intended to protect.” Lemon v. Kurtzman, 403 U.S.
602, 622 (1971).
In seeking an answer to that fact-sensitive question, “I
see no test-related substitute for the exercise of legal
judgment.” Van Orden v. Perry, 545 U.S. 677, 700 (2005)
6 TOWN OF GREECE v. GALLOWAY
BREYER, J., dissenting
(BREYER, J., concurring in judgment). Having applied my
legal judgment to the relevant facts, I conclude, like
JUSTICE KAGAN, that the town of Greece failed to make
reasonable efforts to include prayer givers of minority
faiths, with the result that, although it is a community of
several faiths, its prayer givers were almost exclusively
persons of a single faith. Under these circumstances, I
would affirm the judgment of the Court of Appeals that
Greece’s prayer practice violated the Establishment
Clause.
I dissent from the Court’s decision to the contrary.
Cite as: 572 U. S. ____ (2014) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–696
_________________
TOWN OF GREECE, NEW YORK, PETITIONER v.
SUSAN GALLOWAY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 5, 2014]
JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUS-
TICE BREYER, and JUSTICE SOTOMAYOR join, dissenting.
For centuries now, people have come to this country
from every corner of the world to share in the blessing of
religious freedom. Our Constitution promises that they
may worship in their own way, without fear of penalty or
danger, and that in itself is a momentous offering. Yet our
Constitution makes a commitment still more remarkable—
that however those individuals worship, they will count
as full and equal American citizens. A Christian, a Jew,
a Muslim (and so forth)—each stands in the same re­
lationship with her country, with her state and local
communities, and with every level and body of govern­
ment. So that when each person performs the duties or
seeks the benefits of citizenship, she does so not as an
adherent to one or another religion, but simply as an
American.
I respectfully dissent from the Court’s opinion because I
think the Town of Greece’s prayer practices violate that
norm of religious equality—the breathtakingly generous
constitutional idea that our public institutions belong no
less to the Buddhist or Hindu than to the Methodist or
Episcopalian. I do not contend that principle translates
here into a bright separationist line. To the contrary, I
2 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
agree with the Court’s decision in Marsh v. Chambers, 463
U.S. 783 (1983), upholding the Nebraska Legislature’s tra­
dition of beginning each session with a chaplain’s prayer.
And I believe that pluralism and inclusion in a town hall
can satisfy the constitutional requirement of neutrality;
such a forum need not become a religion-free zone. But
still, the Town of Greece should lose this case. The prac­
tice at issue here differs from the one sustained in Marsh
because Greece’s town meetings involve participation by
ordinary citizens, and the invocations given—directly to
those citizens—were predominantly sectarian in content.
Still more, Greece’s Board did nothing to recognize reli­
gious diversity: In arranging for clergy members to open
each meeting, the Town never sought (except briefly when
this suit was filed) to involve, accommodate, or in any way
reach out to adherents of non-Christian religions. So
month in and month out for over a decade, prayers steeped
in only one faith, addressed toward members of the public,
commenced meetings to discuss local affairs and distribute
government benefits. In my view, that practice does not
square with the First Amendment’s promise that every
citizen, irrespective of her religion, owns an equal share in
her government.
I
To begin to see what has gone wrong in the Town of
Greece, consider several hypothetical scenarios in which
sectarian prayer—taken straight from this case’s record—
infuses governmental activities. None involves, as this
case does, a proceeding that could be characterized as a
legislative session, but they are useful to elaborate some
general principles. In each instance, assume (as was true
in Greece) that the invocation is given pursuant to gov­
ernment policy and is representative of the prayers gener­
ally offered in the designated setting:
Cite as: 572 U. S. ____ (2014) 3
KAGAN, J., dissenting
 You are a party in a case going to trial; let’s say you
have filed suit against the government for violating
one of your legal rights. The judge bangs his gavel
to call the court to order, asks a minister to come to
the front of the room, and instructs the 10 or so in­
dividuals present to rise for an opening prayer.
The clergyman faces those in attendance and says:
“Lord, God of all creation, . . . . We acknowledge
the saving sacrifice of Jesus Christ on the cross.
We draw strength . . . 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. . . . Amen.” App. 88a–89a. The judge then
asks your lawyer to begin the trial.
 It’s election day, and you head over to your local
polling place to vote. As you and others wait to
give your names and receive your ballots, an elec­
tion official asks everyone there to join him in
prayer. He says: “We pray this [day] for the guid­
ance of the Holy Spirit as [we vote] . . . . Let’s just
say the Our Father together. ‘Our Father, who art
in Heaven, hallowed be thy name; thy King-
dom come, thy will be done, on earth as it is in
Heaven. . . .’ ” Id., at 56a. And after he concludes,
he makes the sign of the cross, and appears to wait
expectantly for you and the other prospective vot­
ers to do so too.
 You are an immigrant attending a naturalization
ceremony to finally become a citizen. The presiding
official tells you and your fellow applicants that be­
fore administering the oath of allegiance, he would
4 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
like a minister to pray for you and with you. The
pastor steps to the front of the room, asks everyone
to bow their heads, and recites: “[F]ather, son, and
Holy Spirit—it is with a due sense of reverence and
awe that we come before you [today] seeking your
blessing . . . . You are . . . a wise God, oh Lord, . . .
as evidenced even in the plan of redemption that is
fulfilled in Jesus Christ. We ask that you would
give freely and abundantly wisdom to one and to
all. . . in the name of the Lord and Savior Jesus
Christ, who lives with you and the Holy Spirit, one
God for ever and ever. Amen.” Id., at 99a–100a.
I would hold that the government officials responsible for
the above practices—that is, for prayer repeatedly invok­
ing a single religion’s beliefs in these settings—crossed a
constitutional line. I have every confidence the Court
would agree. See ante, at 13 (ALITO, J., concurring). And
even Greece’s attorney conceded that something like the
first hypothetical (he was not asked about the others)
would violate the First Amendment. See Tr. of Oral Arg.
3–4. Why?
The reason, of course, has nothing to do with Christian­
ity as such. This opinion is full of Christian prayers, be­
cause those were the only invocations offered in the Town
of Greece. But if my hypotheticals involved the prayer of
some other religion, the outcome would be exactly the
same. Suppose, for example, that government officials in
a predominantly Jewish community asked a rabbi to begin
all public functions with a chanting of the Sh’ma and
V’ahavta. (“Hear O Israel! The Lord our God, the Lord is
One. . . . Bind [these words] as a sign upon your hand; let
them be a symbol before your eyes; inscribe them on the
doorposts of your house, and on your gates.”) Or assume
officials in a mostly Muslim town requested a muezzin to
commence such functions, over and over again, with a
Cite as: 572 U. S. ____ (2014) 5
KAGAN, J., dissenting
recitation of the Adhan. (“God is greatest, God is greatest.
I bear witness that there is no deity but God. I bear wit­
ness that Muhammed is the Messenger of God.”) In any
instance, the question would be why such government­
sponsored prayer of a single religion goes beyond the
constitutional pale.
One glaring problem is that the government in all these
hypotheticals has aligned itself with, and placed its im­
primatur on, a particular religious creed. “The clearest
command of the Establishment Clause,” this Court has
held, “is that one religious denomination cannot be offi-
cially preferred over another.” Larson v. Valente, 456 U.S.
228, 244 (1982). Justices have often differed about a
further issue: whether and how the Clause applies to
governmental policies favoring religion (of all kinds) over
non-religion. Compare, e.g., McCreary County v. American
Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005)
(“[T]he First Amendment mandates governmental neutral­
ity between . . . religion and nonreligion”), with, e.g., id., at
885 (SCALIA, J., dissenting) (“[T]he Court’s oft repeated
assertion that the government cannot favor religious
practice [generally] is false”). But no one has disagreed
with this much:
“[O]ur constitutional tradition, from the Declaration
of Independence and the first inaugural address of
Washington . . . down to the present day, has . . . ruled
out of order government-sponsored endorsement of re­
ligion . . . 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 exam­
ple, the divinity of Christ).” Lee v. Weisman, 505 U.S.
577, 641 (1992) (SCALIA, J., dissenting).
See also County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U.S. 573, 605
6 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
(1989) (“Whatever else the Establishment Clause may
mean[,] . . . [it] means at the very least that government
may not demonstrate a preference for one particular sect
or creed (including a preference for Christianity over other
religions)”).1 By authorizing and overseeing prayers
associated with a single religion—to the exclusion of all
others—the government officials in my hypothetical
cases (whether federal, state, or local does not matter)
have violated that foundational principle. They have em-
barked on a course of religious favoritism anathema to the
First Amendment.
And making matters still worse: They have done so in a
place where individuals come to interact with, and partici­
——————
1 That principle meant as much to the founders as it does today. The
demand for neutrality among religions is not a product of 21st century
“political correctness,” but of the 18th century view—rendered no less
wise by time—that, in George Washington’s words, “[r]eligious contro­
versies are always productive of more acrimony and irreconciliable
hatreds than those which spring from any other cause.” Letter to
Edward Newenham (June 22, 1792), in 10 Papers of George Washing­
ton: Presidential Series 493 (R. Haggard & M. Mastromarino eds. 2002)
(hereinafter PGW). In an age when almost no one in this country was
not a Christian of one kind or another, Washington consistently de­
clined to use language or imagery associated only with that religion.
See Brief for Paul Finkelman et al. as Amici Curiae 15–19 (noting, for
example, that in revising his first inaugural address, Washington
deleted the phrase “the blessed Religion revealed in the word of God”
because it was understood to denote only Christianity). Thomas
Jefferson, who followed the same practice throughout his life, explained
that he omitted any reference to Jesus Christ in Virginia’s Bill for
Establishing Religious Freedom (a precursor to the Establishment
Clause) in order “to comprehend, within the mantle of [the law’s]
protection, the Jew and the Gentile, the Christian and Mahometan, the
Hindoo, and infidel of every denomination.” 1 Writings of Thomas
Jefferson 62 (P. Ford ed. 1892). And James Madison, who again used
only nonsectarian language in his writings and addresses, warned that
religious proclamations might, “if not strictly guarded,” express only
“the creed of the majority and a single sect.” Madison’s “Detached
Memoranda,” 3 Wm. & Mary Quarterly 534, 561 (1946).
Cite as: 572 U. S. ____ (2014) 7
KAGAN, J., dissenting
pate in, the institutions and processes of their govern­
ment. A person goes to court, to the polls, to a naturaliza­
tion ceremony—and a government official or his hand­
picked minister asks her, as the first order of official
business, to stand and pray with others in a way conflict­
ing with her own religious beliefs. Perhaps she feels suffi-
cient pressure to go along—to rise, bow her head, and join
in whatever others are saying: After all, she wants,
very badly, what the judge or poll worker or immigration
official has to offer. Or perhaps she is made of stronger
mettle, and she opts not to participate in what she does not
believe—indeed, what would, for her, be something like
blasphemy. She then must make known her dissent from
the common religious view, and place herself apart from
other citizens, as well as from the officials responsible for
the invocations. And so a civic function of some kind
brings religious differences to the fore: That public pro­
ceeding becomes (whether intentionally or not) an instru­
ment for dividing her from adherents to the community’s
majority religion, and for altering the very nature of her
relationship with her government.
That is not the country we are, because that is not what
our Constitution permits. Here, when a citizen stands
before her government, whether to perform a service or
request a benefit, her religious beliefs do not enter into the
picture. See Thomas Jefferson, Virginia Act for Establish­
ing Religious Freedom (Oct. 31, 1785), in 5 The Founders’
Constitution 85 (P. Kurland & R. Lerner eds. 1987)
(“[O]pinion[s] in matters of religion . . . shall in no wise
diminish, enlarge, or affect [our] civil capacities”). The
government she faces favors no particular religion, either
by word or by deed. And that government, in its various
processes and proceedings, imposes no religious tests on
its citizens, sorts none of them by faith, and permits no
exclusion based on belief. When a person goes to court, a
polling place, or an immigration proceeding—I could go on:
8 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
to a zoning agency, a parole board hearing, or the DMV—
government officials do not engage in sectarian worship,
nor do they ask her to do likewise. They all participate in
the business of government not as Christians, Jews, Mus­
lims (and more), but only as Americans—none of them
different from any other for that civic purpose. Why not,
then, at a town meeting?
II
In both Greece’s and the majority’s view, everything I
have discussed is irrelevant here because this case in­
volves “the tradition of legislative prayer outlined” in
Marsh v. Chambers, 463 U.S. 783. Ante, at 10. And
before I dispute the Town and Court, I want to give them
their due: They are right that, under Marsh, legislative
prayer has a distinctive constitutional warrant by virtue of
tradition. As the Court today describes, a long history,
stretching back to the first session of Congress (when
chaplains began to give prayers in both Chambers), “ha[s]
shown that prayer in this limited context could ‘coexis[t]
with the principles of disestablishment and religious
freedom.’ ” Ante, at 10 (quoting Marsh, 463 U.S., at 786).
Relying on that “unbroken” national tradition, Marsh
upheld (I think correctly) the Nebraska Legislature’s
practice of opening each day with a chaplain’s prayer as “a
tolerable acknowledgment of beliefs widely held among
the people of this country.” Id., at 792. And so I agree
with the majority that the issue here is “whether the
prayer practice in the Town of Greece fits within the tradi­
tion long followed in Congress and the state legislatures.”
Ante, at 9.
Where I depart from the majority is in my reply to that
question. The town hall here is a kind of hybrid. Greece’s
Board indeed has legislative functions, as Congress and
state assemblies do—and that means some opening pray­
ers are allowed there. But much as in my hypotheticals,
Cite as: 572 U. S. ____ (2014) 9
KAGAN, J., dissenting
the Board’s meetings are also occasions for ordinary citi­
zens to engage with and petition their government, often
on highly individualized matters. That feature calls for
Board members to exercise special care to ensure that the
prayers offered are inclusive—that they respect each and
every member of the community as an equal citizen.2 But
the Board, and the clergy members it selected, made no
such effort. Instead, the prayers given in Greece, ad­
dressed directly to the Town’s citizenry, were more sec­
tarian, and less inclusive, than anything this Court sus­
tained in Marsh. For those reasons, the prayer in Greece
departs from the legislative tradition that the majority
takes as its benchmark.
A
Start by comparing two pictures, drawn precisely from
reality. The first is of Nebraska’s (unicameral) Legisla­
ture, as this Court and the state senators themselves
described it. The second is of town council meetings in
Greece, as revealed in this case’s record.
It is morning in Nebraska, and senators are beginning
to gather in the State’s legislative chamber: It is the be­
ginning of the official workday, although senators may not
yet need to be on the floor. See Chambers v. Marsh, 504
F. Supp. 585, 590, and n. 12 (D. Neb. 1980); Lee, 505 U.S.,
at 597. The chaplain rises to give the daily invocation.
That prayer, as the senators emphasized when their case
came to this Court, is “directed only at the legislative
——————
2 Because JUSTICE ALITO questions this point, it bears repeating. I do
not remotely contend that “prayer is not allowed” at participatory
meetings of “local government legislative bodies”; nor is that the
“logical thrust” of any argument I make. Ante, at 7–8. Rather, what I
say throughout this opinion is that in this citizen-centered venue,
government officials must take steps to ensure—as none of Greece’s
Board members ever did—that opening prayers are inclusive of differ­
ent faiths, rather than always identified with a single religion.
10 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
membership, not at the public at large.” Brief for Peti­
tioners in Marsh 30. Any members of the public who
happen to be in attendance—not very many at this early
hour—watch only from the upstairs visitors’ gallery. See
App. 72 in Marsh (senator’s testimony that “as a practical
matter the public usually is not there” during the prayer).
The longtime chaplain says something like the following
(the excerpt is from his own amicus brief supporting
Greece in this case): “O God, who has given all persons
talents and varying capacities, Thou dost only require of
us that we utilize Thy gifts to a maximum. In this Legis­
lature to which Thou has entrusted special abilities and
opportunities, may each recognize his stewardship for the
people of the State.” Brief for Robert E. Palmer 9. The
chaplain is a Presbyterian minister, and “some of his
earlier prayers” explicitly invoked Christian beliefs, but he
“removed all references to Christ” after a single legislator
complained. Marsh, 463 U.S., at 793, n. 14; Brief for
Petitioners in Marsh 12. The chaplain also previously
invited other clergy members to give the invocation, in­
cluding local rabbis. See ibid.
Now change the channel: It is evening in Greece, New
York, and the Supervisor of the Town Board calls its
monthly public meeting to order. Those meetings (so says
the Board itself) are “the most important part of Town
government.” See Town of Greece, Town Board, online at
http://greeceny.gov/planning/townboard (as visited May 2,
2014 and available in Clerk of Court’s case file). They
serve assorted functions, almost all actively involving
members of the public. The Board may swear in new
Town employees and hand out awards for civic accom­
plishments; it always provides an opportunity (called a
Public Forum) for citizens to address local issues and ask
for improved services or new policies (for example, better
accommodations for the disabled or actions to ameliorate
traffic congestion, see Pl. Exhs. 718, 755, in No. 6:08–cv–
Cite as: 572 U. S. ____ (2014) 11
KAGAN, J., dissenting
6088 (WDNY)); and it usually hears debate on individ-
ual applications from residents and local businesses to
obtain special land-use permits, zoning variances, or other
licenses.
The Town Supervisor, Town Clerk, Chief of Police, and
four Board members sit at the front of the meeting room
on a raised dais. But the setting is intimate: There are
likely to be only 10 or so citizens in attendance. A few
may be children or teenagers, present to receive an award
or fulfill a high school civics requirement.
As the first order of business, the Town Supervisor
introduces a local Christian clergy member—denominated
the chaplain of the month—to lead the assembled persons
in prayer. The pastor steps up to a lectern (emblazoned
with the Town’s seal) at the front of the dais, and with his
back to the Town officials, he faces the citizens present.
He asks them all to stand and to “pray as we begin this
evening’s town meeting.” App. 134a. (He does not suggest
that anyone should feel free not to participate.) And he
says:
“The beauties of spring . . . are an expressive symbol
of the new life of the risen Christ. The Holy Spirit
was sent to the apostles at Pentecost so that they
would be courageous witnesses of the Good News to
different regions of the Mediterranean world and be­
yond. The Holy Spirit continues to be the inspiration
and the source of strength and virtue, which we all
need in the world of today. And so . . . [w]e pray this
evening for the guidance of the Holy Spirit as the
Greece Town Board meets.” Ibid.
After the pastor concludes, Town officials behind him
make the sign of the cross, as do some members of the
audience, and everyone says “Amen.” See 681 F.3d 20, 24
(CA2 2012). The Supervisor then announces the start of
the Public Forum, and a citizen stands up to complain
12 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
about the Town’s contract with a cable company. See App.
in No. 10–3635 (CA2), p. A574.
B
Let’s count the ways in which these pictures diverge.
First, the governmental proceedings at which the prayers
occur differ significantly in nature and purpose. The
Nebraska Legislature’s floor sessions—like those of the
U. S. Congress and other state assemblies—are of, by, and
for elected lawmakers. Members of the public take no part
in those proceedings; any few who attend are spectators
only, watching from a high-up visitors’ gallery. (In that
respect, note that neither the Nebraska Legislature nor
the Congress calls for prayer when citizens themselves
participate in a hearing—say, by giving testimony rele­
vant to a bill or nomination.) Greece’s town meetings, by
contrast, revolve around ordinary members of the commu­
nity. Each and every aspect of those sessions provides
opportunities for Town residents to interact with public
officials. And the most important parts enable those
citizens to petition their government. In the Public Fo­
rum, they urge (or oppose) changes in the Board’s policies
and priorities; and then, in what are essentially adjudica­
tory hearings, they request the Board to grant (or deny)
applications for various permits, licenses, and zoning
variances. So the meetings, both by design and in opera­
tion, allow citizens to actively participate in the Town’s
governance—sharing concerns, airing grievances, and
both shaping the community’s policies and seeking their
benefits.
Second (and following from what I just said), the pray­
ers in these two settings have different audiences. In the
Nebraska Legislature, the chaplain spoke to, and only to,
the elected representatives. Nebraska’s senators were
adamant on that point in briefing Marsh, and the facts
fully supported them: As the senators stated, “[t]he activ­
Cite as: 572 U. S. ____ (2014) 13
KAGAN, J., dissenting
ity is a matter of internal daily procedure directed only at
the legislative membership, not at [members of] the pub­
lic.” Brief for Petitioners in Marsh 30; see Reply Brief for
Petitioners in Marsh 8 (“The [prayer] practice involves no
function or power of government vis-à-vis the Nebraska
citizenry, but merely concerns an internal decision of the
Nebraska Legislature as to the daily procedure by which it
conducts its own affairs”). The same is true in the U. S.
Congress and, I suspect, in every other state legislature.
See Brief for Members of Congress as Amici Curiae 6
(“Consistent with the fact that attending citizens are mere
passive observers, prayers in the House are delivered for
the Representatives themselves, not those citizens”). As
several Justices later noted (and the majority today
agrees, see ante, at 19–20),3 Marsh involved “government
officials invok[ing] spiritual inspiration entirely for their
own benefit without directing any religious message at the
citizens they lead.” Lee, 505 U.S., at 630, n. 8 (Souter, J.,
concurring).
The very opposite is true in Greece: Contrary to the
majority’s characterization, see ante, at 19–20, the prayers
there are directed squarely at the citizens. Remember
that the chaplain of the month stands with his back to the
Town Board; his real audience is the group he is facing—
the 10 or so members of the public, perhaps including
children. See supra, at 10. And he typically addresses
those people, as even the majority observes, as though he
is “directing [his] congregation.” Ante, at 21. He almost
always begins with some version of “Let us all pray to­
gether.” See, e.g., App. 75a, 93a, 106a, 109a. Often, he
calls on everyone to stand and bow their heads, and he
——————
3 For ease of reference and to avoid confusion, I refer to JUSTICE
KENNEDY’s opinion as “the majority.” But the language I cite that
appears in Part II–B of that opinion is, in fact, only attributable to a
plurality of the Court.
14 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
may ask them to recite a common prayer with him. See,
e.g., id., at 28a, 42a, 43a, 56a, 77a. He refers, constantly,
to a collective “we”—to “our” savior, for example, to the
presence of the Holy Spirit in “our” lives, or to “our brother
the Lord Jesus Christ.” See, e.g., id., at 32a, 45a, 47a, 69a,
71a. In essence, the chaplain leads, as the first part of a
town meeting, a highly intimate (albeit relatively brief)
prayer service, with the public serving as his congregation.
And third, the prayers themselves differ in their content
and character. Marsh characterized the prayers in the
Nebraska Legislature as “in the Judeo-Christian tradi­
tion,” and stated, as a relevant (even if not dispositive)
part of its analysis, that the chaplain had removed all
explicitly Christian references at a senator’s request. 463
U.S., at 793, n. 14. And as the majority acknowledges,
see ante, at 12, Marsh hinged on the view that “that the
prayer opportunity ha[d] [not] been exploited to proselyt­
ize or advance any one . . . faith or belief ”; had it been
otherwise, the Court would have reached a different deci­
sion. 463 U.S., at 794–795.
But no one can fairly read the prayers from Greece’s
Town meetings as anything other than explicitly Chris­
tian—constantly and exclusively so. From the time Greece
established its prayer practice in 1999 until litigation
loomed nine years later, all of its monthly chaplains were
Christian clergy. And after a brief spell surrounding the
filing of this suit (when a Jewish layman, a Wiccan priest­
ess, and a Baha’i minister appeared at meetings), the
Town resumed its practice of inviting only clergy from
neighboring Protestant and Catholic churches. See App.
129a–143a. About two-thirds of the prayers given over
this decade or so invoked “Jesus,” “Christ,” “Your Son,” or
“the Holy Spirit”; in the 18 months before the record
closed, 85% included those references. See generally id.,
at 27a–143a. Many prayers contained elaborations of
Christian doctrine or recitations of scripture. See, e.g., id.,
Cite as: 572 U. S. ____ (2014) 15
KAGAN, J., dissenting
at 129a (“And in the life and death, resurrection and
ascension of the Savior Jesus Christ, the full extent of
your kindness shown to the unworthy is forever demon­
strated”); id., at 94a (“For unto us a child is born; unto us
a son is given. And the government shall be upon his
shoulder . . .”). And the prayers usually close with phrases
like “in the name of Jesus Christ” or “in the name of Your
son.” See, e.g., id., at 55a, 65a, 73a, 85a.
Still more, the prayers betray no understanding that the
American community is today, as it long has been, a rich
mosaic of religious faiths. See Braunfeld v. Brown, 366
U.S. 599, 606 (1961) (plurality opinion) (recognizing even
half a century ago that “we are a cosmopolitan nation
made up of people of almost every conceivable religious
preference”). The monthly chaplains appear almost al­
ways to assume that everyone in the room is Christian
(and of a kind who has no objection to government­
sponsored worship4). The Town itself has never urged its
chaplains to reach out to members of other faiths, or even
to recall that they might be present. And accordingly, few
chaplains have made any effort to be inclusive; none has
thought even to assure attending members of the public
that they need not participate in the prayer session.
Indeed, as the majority forthrightly recognizes, see ante,
at 17, when the plaintiffs here began to voice concern over
prayers that excluded some Town residents, one pastor
pointedly thanked the Board “[o]n behalf of all God-fearing
people” for holding fast, and another declared the objectors
“in the minority and . . . ignorant of the history of our
country.” App. 137a, 108a.
——————
4 Leaders of several Baptist and other Christian congregations have
explained to the Court that “many Christians believe . . . that their
freedom of conscience is violated when they are pressured to participate
in government prayer, because such acts of worship should only be
performed voluntarily.” Brief for Baptist Joint Committee for Religious
Liberty et al. as Amici Curiae 18.
16 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
C
Those three differences, taken together, remove this
case from the protective ambit of Marsh and the history on
which it relied. To recap: Marsh upheld prayer addressed
to legislators alone, in a proceeding in which citizens had
no role—and even then, only when it did not “proselytize
or advance” any single religion. 463 U.S., at 794. It was
that legislative prayer practice (not every prayer in a body
exercising any legislative function) that the Court found
constitutional given its “unambiguous and unbroken
history.” Id., at 792. But that approved practice, as I have
shown, is not Greece’s. None of the history Marsh cited—
and none the majority details today—supports calling on
citizens to pray, in a manner consonant with only a single
religion’s beliefs, at a participatory public proceeding,
having both legislative and adjudicative components. Or
to use the majority’s phrase, no “history shows that th[is]
specific practice is permitted.” Ante, at 8. And so, contra
the majority, Greece’s prayers cannot simply ride on the
constitutional coattails of the legislative tradition Marsh
described. The Board’s practice must, in its own particu­
lars, meet constitutional requirements.
And the guideposts for addressing that inquiry include
the principles of religious neutrality I discussed earlier.
See supra, at 4–8. The government (whether federal,
state, or local) may not favor, or align itself with, any
particular creed. And that is nowhere more true than
when officials and citizens come face to face in their
shared institutions of governance. In performing civic
functions and seeking civic benefits, each person of this
nation must experience a government that belongs to one
and all, irrespective of belief. And for its part, each gov­
ernment must ensure that its participatory processes will
not classify those citizens by faith, or make relevant their
religious differences.
To decide how Greece fares on that score, think again
Cite as: 572 U. S. ____ (2014) 17
KAGAN, J., dissenting
about how its prayer practice works, meeting after meet­
ing. The case, I think, has a fair bit in common with my
earlier hypotheticals. See supra, at 2–4, 7. Let’s say that
a Muslim citizen of Greece goes before the Board to share
her views on policy or request some permit. Maybe she
wants the Board to put up a traffic light at a dangerous
intersection; or maybe she needs a zoning variance to
build an addition on her home. But just before she gets to
say her piece, a minister deputized by the Town asks her
to pray “in the name of God’s only son Jesus Christ.” App.
99a. She must think—it is hardly paranoia, but only the
truth—that Christian worship has become entwined with
local governance. And now she faces a choice—to pray
alongside the majority as one of that group or somehow to
register her deeply felt difference. She is a strong person,
but that is no easy call—especially given that the room is
small and her every action (or inaction) will be noticed.
She does not wish to be rude to her neighbors, nor does
she wish to aggravate the Board members whom she will
soon be trying to persuade. And yet she does not want to
acknowledge Christ’s divinity, any more than many of her
neighbors would want to deny that tenet. So assume she
declines to participate with the others in the first act of
the meeting—or even, as the majority proposes, that she
stands up and leaves the room altogether, see ante, at 21.
At the least, she becomes a different kind of citizen, one
who will not join in the religious practice that the Town
Board has chosen as reflecting its own and the communi­
ty’s most cherished beliefs. And she thus stands at a
remove, based solely on religion, from her fellow citizens
and her elected representatives.
Everything about that situation, I think, infringes the
First Amendment. (And of course, as I noted earlier, it
would do so no less if the Town’s clergy always used the
liturgy of some other religion. See supra, at 4–5.) That
the Town Board selects, month after month and year after
18 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
year, prayergivers who will reliably speak in the voice of
Christianity, and so places itself behind a single creed.
That in offering those sectarian prayers, the Board’s cho­
sen clergy members repeatedly call on individuals, prior to
participating in local governance, to join in a form of wor­
ship that may be at odds with their own beliefs. That the
clergy thus put some residents to the unenviable choice of
either pretending to pray like the majority or declining to
join its communal activity, at the very moment of petition­
ing their elected leaders. That the practice thus divides
the citizenry, creating one class that shares the Board’s
own evident religious beliefs and another (far smaller)
class that does not. And that the practice also alters a
dissenting citizen’s relationship with her government,
making her religious difference salient when she seeks
only to engage her elected representatives as would any
other citizen.
None of this means that Greece’s town hall must be
religion- or prayer-free. “[W]e are a religious people,”
Marsh observed, 463 U.S., at 792, and prayer draws some
warrant from tradition in a town hall, as well as in Con­
gress or a state legislature, see supra, at 8–9. What the
circumstances here demand is the recognition that we are
a pluralistic people too. When citizens of all faiths come
to speak to each other and their elected representatives
in a legislative session, the government must take espe-
cial care to ensure that the prayers they hear will seek
to include, rather than serve to divide. No more is
required—but that much is crucial—to treat every citizen,
of whatever religion, as an equal participant in her
government.
And contrary to the majority’s (and JUSTICE ALITO’s)
view, see ante, at 13–14; ante, at 4–7, that is not difficult
to do. If the Town Board had let its chaplains know that
they should speak in nonsectarian terms, common to
diverse religious groups, then no one would have valid
Cite as: 572 U. S. ____ (2014) 19
KAGAN, J., dissenting
grounds for complaint. See Joyner v. Forsyth County, 653
F.3d 341, 347 (CA4 2011) (Wilkinson, J.) (Such prayers
show that “those of different creeds are in the end kindred
spirits, united by a respect paid higher providence and by
a belief in the importance of religious faith”). Priests and
ministers, rabbis and imams give such invocations all the
time; there is no great mystery to the project. (And
providing that guidance would hardly have caused the
Board to run afoul of the idea that “[t]he First Amendment
is not a majority rule,” as the Court (headspinningly)
suggests, ante, at 14; what does that is the Board’s refusal
to reach out to members of minority religious groups.) Or
if the Board preferred, it might have invited clergy of
many faiths to serve as chaplains, as the majority notes
that Congress does. See ante, at 10–11. When one month
a clergy member refers to Jesus, and the next to Allah or
Jehovah—as the majority hopefully though counterfactu­
ally suggests happened here, see ante, at 10–11, 15—the
government does not identify itself with one religion or
align itself with that faith’s citizens, and the effect of even
sectarian prayer is transformed. So Greece had multiple
ways of incorporating prayer into its town meetings—
reflecting all the ways that prayer (as most of us know
from daily life) can forge common bonds, rather than
divide. See also ante, at 4 (BREYER, J., dissenting).
But Greece could not do what it did: infuse a participa­
tory government body with one (and only one) faith, so
that month in and month out, the citizens appearing
before it become partly defined by their creed—as those
who share, and those who do not, the community’s major-
ity religious belief. In this country, when citizens go before
the government, they go not as Christians or Muslims or
Jews (or what have you), but just as Americans (or here,
as Grecians). That is what it means to be an equal citizen,
irrespective of religion. And that is what the Town of
Greece precluded by so identifying itself with a single
20 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
faith.
III
How, then, does the majority go so far astray, allowing
the Town of Greece to turn its assemblies for citizens into
a forum for Christian prayer? The answer does not lie in
first principles: I have no doubt that every member of this
Court believes as firmly as I that our institutions of gov­
ernment belong equally to all, regardless of faith. Rather,
the error reflects two kinds of blindness. First, the major-
ity misapprehends the facts of this case, as distinct from
those characterizing traditional legislative prayer. And
second, the majority misjudges the essential meaning of
the religious worship in Greece’s town hall, along with its
capacity to exclude and divide.
The facts here matter to the constitutional issue; in-
deed, the majority itself acknowledges that the requisite
inquiry—a “fact-sensitive” one—turns on “the setting in
which the prayer arises and the audience to whom it is
directed.” Ante, at 19. But then the majority glides right
over those considerations—at least as they relate to the
Town of Greece. When the majority analyzes the “setting”
and “audience” for prayer, it focuses almost exclusively on
Congress and the Nebraska Legislature, see ante, at 6–8,
10–11, 15–16, 19–20; it does not stop to analyze how far
those factors differ in Greece’s meetings. The majority
thus gives short shrift to the gap—more like, the chasm—
between a legislative floor session involving only elected
officials and a town hall revolving around ordinary citi­
zens. And similarly the majority neglects to consider how
the prayers in Greece are mostly addressed to members of
the public, rather than (as in the forums it discusses) to
the lawmakers. “The District Court in Marsh,” the major­
ity expounds, “described the prayer exercise as ‘an inter­
nal act’ directed at the Nebraska Legislature’s ‘own mem­
bers.’ ” Ante, at 19 (quoting Chambers v. Marsh, 504
Cite as: 572 U. S. ____ (2014) 21
KAGAN, J., dissenting
F. Supp., at 588); see ante, at 20 (similarly noting that
Nebraska senators “invoke[d] spiritual inspiration entirely
for their own benefit” and that prayer in Congress is “reli­
gious worship for national representatives” only). Well,
yes, so it is in Lincoln, and on Capitol Hill. But not in
Greece, where as I have described, the chaplain faces the
Town’s residents—with the Board watching from on
high—and calls on them to pray together. See supra, at
10, 12.
And of course—as the majority sidesteps as well—to
pray in the name of Jesus Christ. In addressing the sec­
tarian content of these prayers, the majority again chang­
es the subject, preferring to explain what happens in other
government bodies. The majority notes, for example, that
Congress “welcom[es] ministers of many creeds,” who
commonly speak of “values that count as universal,” ante,
at 11, 15; and in that context, the majority opines, the fact
“[t]hat a prayer is given in the name of Jesus, Allah, or
Jehovah . . . does not remove it from” Marsh’s protection,
see ante, at 15. But that case is not this one, as I have
shown, because in Greece only Christian clergy members
speak, and then mostly in the voice of their own religion;
no Allah or Jehovah ever is mentioned. See supra, at 13–
14. So all the majority can point to in the Town’s practice
is that the Board “maintains a policy of nondiscrimina­
tion,” and “represent[s] that it would welcome a prayer by
any minister or layman who wishe[s] to give one.” Ante, at
17–18. But that representation has never been publicized;
nor has the Board (except for a few months surrounding
this suit’s filing) offered the chaplain’s role to any non-
Christian clergy or layman, in either Greece or its envi­
rons; nor has the Board ever provided its chaplains with
guidance about reaching out to members of other faiths, as
most state legislatures and Congress do. See 732 F. Supp.
2d 195, 197–203 (WDNY 2010); National Conference of
State Legislatures, Inside the Legislative Process: Prayer
22 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
Practices 5–145, 5–146 (2002); ante, at 5 (BREYER, J.,
dissenting). The majority thus errs in assimilating
the Board’s prayer practice to that of Congress or the Ne-
braska Legislature. Unlike those models, the Board is
determinedly—and relentlessly—noninclusive.5
And the month in, month out sectarianism the Board
chose for its meetings belies the majority’s refrain that the
prayers in Greece were “ceremonial” in nature. Ante, at
16, 19, 21, 23. Ceremonial references to the divine surely
abound: The majority is right that “the Pledge of Alle­
giance, inaugural prayer, or the recitation of ‘God save the
United States and this honorable Court’ ” each fits the bill.
Ante, at 19. But prayers evoking “the saving sacrifice of
Jesus Christ on the cross,” “the plan of redemption that is
fulfilled in Jesus Christ,” “the life and death, resurrection
and ascension of the Savior Jesus Christ,” the workings of
the Holy Spirit, the events of Pentecost, and the belief that
God “has raised up the Lord Jesus” and “will raise us, in
our turn, and put us by His side”? See App. 56a, 88a–89a,
99a, 123a, 129a, 134a. No. These are statements of pro­
found belief and deep meaning, subscribed to by many,
denied by some. They “speak of the depths of [one’s] life,
of the source of [one’s] being, of [one’s] ultimate concern, of
what [one] take[s] seriously without any reservation.” P.
——————
5 JUSTICE ALITO similarly falters in attempting to excuse the Town
Board’s constant sectarianism. His concurring opinion takes great
pains to show that the problem arose from a sort of bureaucratic glitch:
The Town’s clerks, he writes, merely “did a bad job in compiling the
list” of chaplains. Ante, at 6; see ante, at 1–3. Now I suppose one
question that account raises is why in over a decade, no member of the
Board noticed that the clerk’s list was producing prayers of only one
kind. But put that aside. Honest oversight or not, the problem re­
mains: Every month for more than a decade, the Board aligned itself,
through its prayer practices, with a single religion. That the concurring
opinion thinks my objection to that is “really quite niggling,” ante, at 4,
says all there is to say about the difference between our respective
views.
Cite as: 572 U. S. ____ (2014) 23
KAGAN, J., dissenting
Tillich, The Shaking of the Foundations 57 (1948). If they
(and the central tenets of other religions) ever become
mere ceremony, this country will be a fundamentally
different—and, I think, poorer—place to live.
But just for that reason, the not-so-implicit message of
the majority’s opinion—“What’s the big deal, anyway?”—is
mistaken. The content of Greece’s prayers is a big deal, to
Christians and non-Christians alike. A person’s response
to the doctrine, language, and imagery contained in those
invocations reveals a core aspect of identity—who that
person is and how she faces the world. And the responses
of different individuals, in Greece and across this country,
of course vary. Contrary to the majority’s apparent view,
such sectarian prayers are not “part of our expressive
idiom” or “part of our heritage and tradition,” assuming
the word “our” refers to all Americans. Ante, at 19. They
express beliefs that are fundamental to some, foreign to
others—and because that is so they carry the ever-present
potential to both exclude and divide. The majority, I
think, assesses too lightly the significance of these reli­
gious differences, and so fears too little the “religiously
based divisiveness that the Establishment Clause seeks to
avoid.” Van Orden v. Perry, 545 U.S. 677, 704 (2005)
(BREYER, J., concurring in judgment). I would treat more
seriously the multiplicity of Americans’ religious commit­
ments, along with the challenge they can pose to the
project—the distinctively American project—of creating
one from the many, and governing all as united.
IV
In 1790, George Washington traveled to Newport, Rhode
Island, a longtime bastion of religious liberty and the
home of the first community of American Jews. Among
the citizens he met there was Moses Seixas, one of that
congregation’s lay officials. The ensuing exchange be­
tween the two conveys, as well as anything I know, the
24 TOWN OF GREECE v. GALLOWAY
KAGAN, J., dissenting
promise this country makes to members of every religion.
Seixas wrote first, welcoming Washington to Newport.
He spoke of “a deep sense of gratitude” for the new Ameri­
can Government—“a Government, which to bigotry gives
no sanction, to persecution no assistance—but generously
affording to All liberty of conscience, and immunities of
Citizenship: deeming every one, of whatever Nation,
tongue, or language, equal parts of the great governmental
Machine.” Address from Newport Hebrew Congregation
(Aug. 17, 1790), in 6 PGW 286, n. 1 (M. Mastromarino ed.
1996). The first phrase there is the more poetic: a gov­
ernment that to “bigotry gives no sanction, to persecution
no assistance.” But the second is actually the more star­
tling and transformative: a government that, beyond not
aiding persecution, grants “immunities of citizenship” to
the Christian and the Jew alike, and makes them “equal
parts” of the whole country.
Washington responded the very next day. Like any
successful politician, he appreciated a great line when he
saw one—and knew to borrow it too. And so he repeated,
word for word, Seixas’s phrase about neither sanctioning
bigotry nor assisting persecution. But he no less embraced
the point Seixas had made about equality of citizenship.
“It is now no more,” Washington said, “that toleration is
spoken of, as if it was by the indulgence of one class of
people” to another, lesser one. For “[a]ll possess alike . . .
immunities of citizenship.” Letter to Newport Hebrew
Congregation (Aug. 18, 1790), in 6 PGW 285. That is
America’s promise in the First Amendment: full and equal
membership in the polity for members of every religious
group, assuming only that they, like anyone “who live[s]
under [the Government’s] protection[,] should demean
themselves as good citizens.” Ibid.
For me, that remarkable guarantee means at least this
much: When the citizens of this country approach their
government, they do so only as Americans, not as mem­
Cite as: 572 U. S. ____ (2014) 25
KAGAN, J., dissenting
bers of one faith or another. And that means that even
in a partly legislative body, they should not confront
government-sponsored worship that divides them along
religious lines. I believe, for all the reasons I have given,
that the Town of Greece betrayed that promise. I there­
fore respectfully dissent from the Court’s decision.