Alan Brownstein


It is difficult to analyze a Supreme Court decision that is as fundamentally misguided and unpersuasive as last term’s decision in Town of Greece v. Galloway, the case upholding state-sponsored prayers before Town Board Meetings. In attempting to do so in this Article, I critically evaluate the Court’s repeated failures to adequately address the serious religious equality and religious liberty issues presented in this case. With regard to religious equality concerns, for example, the Court all but completely ignores the Town’s discrimination in favor of established organized churches and against minorities with too few adherents to organize a congregation in the Town, nonaffiliated spiritual residents of the community, and nonreligious residents. Even worse, the Court suggests that allowing low level functionaries to develop informal and imprecise criteria to determine who should be invited to offer prayers at board meetings without adopting a policy or providing any guidance on how these decisions should be reached somehow immunizes the Town from serious constitutional scrutiny. Instead, I argue that this lack of guidelines and policy itself should be understood to violate the First Amendment because it so obviously increases the risk of biased and discriminatory conduct.

The Court’s discussion of plaintiffs’ religious liberty concerns is even more untenable. Plaintiffs argued that if a government official or deliberative body has the discretionary authority to make decisions that will seriously impact the needs and interests of individuals or small groups of citizens, it is intrinsically coercive for those officials to ask these citizens to engage in a religious exercise such as a prayer before they submit their arguments or petitions to government decisionmakers. In order to reject these claims, Justice Kennedy describes an understanding of social reality that is difficult to believe and impossible to share. Perhaps most egregiously, Kennedy’s analysis treats prayer as if it is some kind of abstract ceremonial activity instead of what it is for most Americans—a personal, meaningful communication between the individual and G-D.

The Article concludes with a discussion of the possible implications of this decision for the constitutional protection of religious liberty and equality in other contexts and circumstances.