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

Cite as: 572 U. S. ____ (2014) 3

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,

Cite as: 572 U. S. ____ (2014) 5

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

Cite as: 572 U. S. ____ (2014) 11

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

Cite as: 572 U. S. ____ (2014) 17

Opinion of the Court

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

Cite as: 572 U. S. ____ (2014) 19

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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,

Cite as: 572 U. S. ____ (2014) 21

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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 one of the first communities 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 “bigotr

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