National groups send a prayer to the Supreme Court

Reuters News
Posted: Nov 01, 2013 8:06 AM
National groups send a prayer to the Supreme Court

By Lawrence Hurley

GREECE, New York (Reuters) - Bankrolled by powerful outside interests, what began as a dispute aired in the pages of a town's local newspaper next week moves to the U.S. Supreme Court where justices could potentially roll back legal precedents that limit the role of religion in public life.

The battle pits two residents of an upstate New York town, backed by a civil liberties group advocating for the separation of church and state against a town supervisor supported by a prominent, evangelical Christian organization.

Both groups - Americans United for Separation of Church and State and the Alliance Defending Freedom - have multi-million dollar budgets and litigate on a variety of related issues, often against each other.

Linda Stephens, 70, an atheist, and Susan Galloway, 51, who is Jewish, are both long-term residents of the conservative-leaning town of Greece, a Rochester suburb of around 100,000 people located about 300 miles northwest of New York City. They filed a lawsuit in 2008 against the town objecting to the public prayer that precedes town board meetings, claiming it violates the U.S. Constitution's First Amendment prohibition on government establishment of religion.

The Supreme Court has previously said prayers that take place before a state legislative session are acceptable. Galloway and Stephens say the Greece prayers are different. Their lawyers have a series of arguments, including that the intimate nature of a town meeting makes the use of prayers more coercive than in the state legislature context. Residents, who are often active participants at town meetings, "experience substantial pressure to participate in the prayers," thus leading to a constitutional violation, the lawyers say.

The Supreme Court will hear the case on Wednesday and rule before the term ends in late June.

It has various options for deciding the case, with conservative Christian groups asking the justices to interpret the Constitution in a way that would allow for increased religious expression by the government. Such a ruling could make it easier for government officials to justify religious displays on government property, such as Christmas nativity scenes, and religious speech by government officials at such public events as school graduations.

The administration of President Barack Obama, opting for the middle ground, waded in on the side of the town, filing a brief that pointed to existing precedent that allows for prayers before legislative sessions, including Congress.

In court papers, Solicitor General Donald Verrilli stuck to the legal position that the federal government has taken in previous cases. Verrilli wrote that legislative prayer is not unconstitutional under existing law "merely because most prayer-givers are Christian and many or most of their prayers contain sectarian references."


The Greece Town Supervisor John Auberger, a 61-year-old Republican, decided to replace a moment of silence with a prayer after taking office in 1998.

In a conference room at the plain red-brick 1990s town hall, Auberger, a Catholic, said the reason for introducing a prayer was simple. Before assuming the supervisor position, he had served in the county legislature, which holds a prayer before its sessions.

"It worked well," he told Reuters. He saw no reason not to introduce the practice to town meetings as the idea of a prayer before legislative sessions was commonplace and "endorsed by our founding fathers."

The case largely turns on the Supreme Court's 1983 Marsh v. Chambers ruling that legislative prayer sessions, such as in Congress, did not violate the First Amendment in large part because of the historic nature of the practice.

In the present case, the New York-based 2nd U.S. Circuit Court of Appeals departed from that analysis in a May 2012 ruling. It found that the town's method of picking its prayer givers and the explicitly Christian references in some of the prayers, including mentions of Jesus Christ and the Holy Spirit, mean that the practice "must be viewed as an endorsement of a particular religious viewpoint" in violation of the Establishment Clause of the First Amendment which holds that Congress shall make no law respecting an establishment of religion.

Stephens and Galloway were exposed to the new prayer policy when attending town meetings for other reasons. Both women objected to the strong Christian messages being conveyed, including references to Jesus Christ.

"I shouldn't be forced to conform or pray to your deity because I want to go to a town board meeting," Galloway told Reuters.

After an initial complaint made by another resident made no headway while generating a lot of local headlines, Stephens and Galloway, who knew each other via the local branch of a women's organization, sought advice from Americans United for Separation of Church and State, a Washington-based national group that advocates for the separation of church and state.

Stephens, a member of the local chapter, was able to secure free legal services. After a meeting with town officials led to no resolution, Americans United filed suit in federal court in the Western District of New York.

Facing the cost of defending a lawsuit, and insistent that the town had done nothing wrong, Auberger was offered legal services by a variety of entities, he said. He chose the conservative Scottsdale, Arizona-based Alliance Defending Freedom, previously known as the Alliance Defense Fund, which was founded in 1994 by a group of prominent evangelical Christian activists, including James Dobson, the founder of Colorado Springs, Colorado-based Focus on the Family.

A federal district court judge dismissed the Stephens-Galloway lawsuit in 2010, prompting Americans United's successful appeal. Then it was ADF's turn to appeal, this time to the Supreme Court.


Americans United and ADF have been locked in similar legal battles in recent years, sometimes against each other, but none until now had reached the Supreme Court. Most have been settled, according to lawyers familiar with the litigation.

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"This is the culmination of a coordinated national campaign to challenge legislative prayer," Brett Harvey, a lawyer with ADF, said of the Greece case.

There have been 19 federal lawsuits challenging legislative prayer since 2005, according to ADF data. Americans United was directly involved in five and has had input into others. ADF has represented government defendants directly in six and was indirectly involved in another six, according to ADF.

Ayesha Khan, Americans United's legal director, defines the dispute differently. ADF and similar groups are seeking to ensure that "Christian principles find their way into governance," she said.

In 2012, Americans United's budget was $5.8 million. It had four staff attorneys who litigated cases on a number of related issues concerning religious-tinged speech by government entities.

ADF has a broader remit than Americans United. Its 44 attorneys have been active in litigation concerning a number of conservative causes, including opposition to both abortion rights and the expansion of rights for gays and lesbians.

Its budget in 2012 was just over $41 million.

Both organizations are funded by individual donations. Both are registered with the IRS as 501(c)(3) organizations for tax purposes, meaning they are not engaged in political activity and are therefore not required to disclose the identity of donors. Americans United's annual report includes a list of major donors. ADF chooses not to disclose such information.

Marci Hamilton, a professor at the Benjamin N. Cardozo School of Law in New York City who specializes in religion and the law, said both groups' fundraising efforts will benefit from being involved in such a high-profile case.

"It's a classic battle," she said. "They are both fighting for the soul of the United States."


At a sparsely attended town meeting on an early summer evening in August, there was little indication of the town's new status as a proxy battleground in a national war over the appropriate use of religion in the public sphere.

Since the lawsuit was filed in 2008, members of other faiths have sporadically given prayers, including Jennifer Zarpentine, a Wiccan.

At the August session, it was the turn of Tom Lynch, a scraggly white-bearded member of the Baha'i faith, who nervously gave the pre-meeting prayer.

Auberger and town officials sat impassively as he spoke.

It was a coincidence, the town said via its lawyers, that a non-Christian gave the prayer.

(Reporting by Lawrence Hurley; Editing by Howard Goller, Amy Stevens and Lisa Shumaker)