Legislative Prayer, the Supreme Court of the United States and Two Concepts of Religious Liberty: Town of Greece, New York v. Galloway

This paper briefly contrasts two concepts of religious liberty—the French concept of strict secularism and freedom from religion, and the United States’ concept of mutual tolerance and freedom of religion as reflected in a recent decision of the United States Supreme Court upholding officially-sanctioned prayers at meetings of local legislative councils, such as town boards or city councils. On May 5, 2014, the Supreme Court decided Town of Greece, New York v. Galloway. In a 5-4 decision, the Supreme Court held that the Establishment Clause must be interpreted in light of an unbroken history of legislative prayer, dating back over 200 years to the time of the First Congress. Thus, rather than apply a judge-made test requiring strict separation, the Supreme Court held that the original meaning of the Establishment Clause, as reflected by “a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change,” should govern its interpretation of the Establishment Clause. Therefore, even sectarian prayers, such as those offered in the name of Jesus or the Holy Spirit, are permissible invocations by legislative bodies so long as they do not coercively proselytize a favored religion, nor disparage a disfavored faith or belief. Moreover, so long as those offended by the prayer are not required to participate, they have no right to enjoin the prayer. The conclusion of this paper is that mutual tolerance and freedom of religion are a better response to religious pluralism than are strict secularism and a harsh system of religious censorship and freedom from religion