Town of Greece--Important Excerpts

First, the Court makes clear that not only is Marsh still good law, it should not be viewed as some kind of a "legislative prayer" exception to the Establishment Clause.

"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." p.1793

How does this apply to passive display cases such as those involving a Nativity Display or a Ten Commandments display? Or to Commencement prayer cases or to student-led prayer before football games?

What about the argument that legislative prayer must be "nonsectarian or ecumenical?"  p.1793

  This argument is "not consistent with the tradition of legislative prayer outlined in the Court's cases." p. 1793

Sectarian prayers are fine, because we acknowledge "our growing diversity not by proscibing sectarian content but by welcoming ministers of many creeds." p. 1794 The EC does not require "that legislative prayer may be addressed only to a generic God." p. 1792 (some of this is in the original opinion but has been edited from the casebook)

Government may invite prayer into the public sphere, and "must permit the prayer giver to address his or her own God or gods as conscience dictates." p. 1794 The only constraint on the content of prayers is this:

"If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion," that "would present a different case than the one presently before the Court."  p. 1794

What about those offended by the prayer--the offended observers?

1, See p.1795

2. "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." --Town of Greece, 134 S. Ct. at 1826.

Here is how I summarize this last point in a short article I have written:

The Town of Greece majority opinion was also not persuaded by the argument that prayer at town board meetings “coerces participation by nonadherents.”Although there was no actual coercion or intimidation of those wishing not to pray, Respondents argued that some members of the public might feel “subtle pressure” to join in prayers in order to please town board members “who would be ruling on their petitions." In the alternative, Respondents argued that they found the prayers offensive and this made them feel “excluded and disrespected.” The Supreme Court rejected all of these arguments reasoning that “mature adults” should have the capacity to resist subtle pressure and to either leave “the meeting room during the prayer” or remain in the room and quietly decline to join in the prayer. Moreover, in response to Respondents’ argument that sectarian prayers offended them and hurt their feelings, the Court essentially instructed them to grow up and get over it:

“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.”

In other words, neither subtle pressure to participate nor hurt feelings will suffice to give mature adults a constitutional right to enjoin legislative prayer at town board meetings. Religious liberty under the Establishment Clause does not give dissenters a heckler’s veto over the practice or content of legislative prayers. Or, as Justice Kennedy put it so clearly in Town of Greece, “[s]o long as the town maintains a policy of nondiscrimination,” government does not “engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”  

 Do not overlook Justice Thomas' concurring opinion (at p.1797) in which he speaks of the EC as a "federalism provision." What does that mean? How would it affect cases such as these?