Is a school board the same as a town council when it comes opening public meetings with a prayer?
Legal experts disagreed on that question last week after the U.S. Supreme Court upheld prayers before meetings of the town council in Greece, N.Y., that were predominantly delivered by Christian clergy members.
“The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents,” Justice Anthony M. Kennedy wrote for the 5-4 majority.
Objectors to the prayers in the New York state town of 96,000 were not seeking to end the practice altogether, but were trying to encourage more ecumenical prayers and more religious variety.
Justice Kennedy said the case was governed by the high court’s 1983 decision in Marsh v. Chambers, which upheld prayers delivered before the Nebraska legislature.
“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,” he said in the May 5 decision in Town of Greece v. Galloway (Case No. 12-696).
Justice Kennedy’s opinion was joined in full by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. and in large part by Justices Antonin Scalia and Clarence Thomas.
Sharp Dissent
But Justice Elena Kagan, in a dissent joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor, said town meetings were different from sessions of legislatures because ordinary citizens are there to interact with the council, and in Greece the prayers were directed not just at council members but at everyone present.
“When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another,” Justice Kagan wrote. “And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”
Prayers before public meetings have been an issue for school boards in some places. The two federal appeals courts that have addressed such prayers have barred them as an unconstitutional establishment of religion. Those courts have held that school board meetings were more like school itself, with students frequently present to receive recognition or for other purposes.
“School boards are distinct” from towns and other municipal bodies, said Gregory M. Lipper, a senior litigation counsel with Americans United for Separation of Church and State, a Washington group that represented the prayer challengers in Greece. “Students are often active participants, sometimes as members of the board of education.”
“There would still be at best a significant legal risk to school boards that decided to open their meetings with prayers,” Mr. Lipper said.
Jason P. Gosselin, a Philadelphia lawyer who represented a Delaware school district in a meeting-prayer case a few years ago, had a different interpretation.
“I think this decision supports the view that this practice is permissible” at school board meetings, he said.
Such meetings primarily revolve around the public business of the school district, and students “just occasionally happen to be there,” said Mr. Gosselin, who represented the Indian River school district in Delaware in 2011 before the U.S. Court of Appeals for the 5th Circuit, in Philadelphia. That court ruled against the school board’s prayers.
Room for Disagreement
Both advocates’ views might find ammunition in the Supreme Court’s various opinions in Town of Greece, which did not explicitly address the issue of school board meetings.
Mr. Lipper noted that Justice Kennedy discussed adults, but not necessarily children, as being unlikely to be coerced by a town meeting prayer delivered by someone outside their faith.
“Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith,” Justice Kennedy wrote.
And in a part of his opinion not joined by Justices Scalia and Thomas, Justice Kennedy said that town-meeting prayers do not present the same potential for coercion the court found problematic in Lee v. Weisman, the 1992 decision written by him that barred clergy-led prayers at school graduation ceremonies.
“The circumstances the court confronted [in Lee] are not present in this case and do not control its outcome,” Justice Kennedy said.
Mr. Lipper read that to suggest Justice Kennedy would treat all school situations, including school board meetings, as being in a category different from town meetings.
On the other hand, Justice Kennedy wrote of “local legislative bodies” without explicitly excluding school boards.
And Justice Alito, in a concurrence, said that there was nothing unusual “about the occasional attendance of students” at town meetings, intimating that their presence did not raise constitutional concerns.
“I think you could read this to permit prayer in a much broader group of governmental settings,” Mr. Gosselin said.
