The story of Town of Greece v. Galloway begins in 1999, in the thriving hamlet of Greece, N. (pop. 96,000) just outside Rochester. Until then, the Greece Town Council had opened its monthly meetings with a moment of silence. But that didn’t satisfy newly elected Supervisor John T. Auberger, who wanted prayer, by God. At first he led the prayers himself; then the Council began inviting local clergy to give prayers. Over the 13-year period of Greece’s evangelizing mission, all of those praying but three have been Christian ministers. (The town says it has always been its policy to allow anyone to open the meeting if they asked; but that policy seems to have been secret, and town officials made the calls to clergy, asking them to come and pray.) Many of the clergy giving the invocation asked the audience to bow their heads, called on Jesus Christ, led a group recital of the Lord’s Prayer, or asked the audience to say “Amen.”
The audience was completely free to walk out, look at the ceiling, or stick their fingers in their ears and yell “No one’s listening to you!” That is, they were not subject to being jailed or fined. Whether you’d feel “free” in those circumstances may, in fact, be the central question in the case.
Here’s how lawyers for the Town of Greece put it in their brief: “As understood by the Framers, government ‘established’ religion either by compelling the payment of taxes to support a favored religion or by compelling obedience to the tenets of a particular faith.” Asking people to pray while you ponder their zoning variance thus isn’t a problem—unless you ask for money up front, or tell them to say ten Our Fathers and ask again.
Religious conservatives have been promoting the “coercion” test for nearly a generation. In 1992, they seemed posed for victory. Lee v. Weisman concerned a local high-school graduation ceremony, with a Rabbi invited to give an elaborate invocation asking God’s blessings on the graduates. No one was asked to join in, and there was no reference to any particular denomination of Christianity or Judaism. So confident were the “coercion” advocates that the School Board’s lawyer told the Court that a state government could constitutionally set up an official state religion, as long as it was “purely noncoercive.”
In the Court’s opinion, though, Justice Anthony Kennedy broadened the “coercion” test. The graduates were young, the ceremony was a special day, and public and peer pressure to participate “can be as real as any overt compulsion.” The invocation thus violated the Establishment Clause, he wrote. This angered Justice Antonin Scalia, who wrote that the Clause was on violated by “coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”
But Scalia added an important qualification. Public prayer, he wrote, is okay as long as it is not “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 example, the divinity of Christ).”