In its recent decision in Town of Greece v. Galloway, 572 U.S. __ (2014), the United States Supreme Court, reversing a decision of the Second Circuit of Appeals, held that the practice of the Town of Greece, New York, of opening meetings of its local legislative body with a prayer offered by members of the clergy did not violate the Establishment Clause of the First Amendment of the United States Constitution, which provides that “Congress shall make no law respecting an establishment of religion.” Instead, in a 5-4 opinion, the Court found that Greece’s practice was constitutional so long as it (1) was consistent with the tradition long held by Congress and state legislatures, (2) did not discriminate against minority faiths in determining who may offer the prayer, and (3) where the prayer did not attempt to coerce participation by meeting attendees. In rendering its decision, the Court followed its decision in Marsh v. Chambers, decided in 1983, a case in which the Court upheld the constitutionality of the Nebraska Legislature’s practice of beginning its sessions with a prayer by a chaplain who was paid by the State to give an invocation. Notably, the Court observed that nothing in Marsh required that legislative prayer use only “neutral” language or refer only to a generic “God” – explicit references to specific religious faiths, Christian or otherwise, do not render an otherwise constitutional invocation unconstitutional. However, the Court cautioned that the prayer opportunity, intended to solemnize a meeting, should not be exploited in an effort to condemn or convert individuals who are not members of the same religious faith as the prayer-giver. Such actions may result in a violation of the Establishment Clause. However, in the Greece case, a majority of the Justices were not troubled by alleged distinctions between the Nebraska legislators and the citizens attending the Greece town meetings. Nor, given the facts of Greece, did a majority of the Supreme Court express particular concern that the actions of either the town council or the prayer-givers resulted in actual legal coercion.
The Supreme Court’s decision in the Town of Greece case, decided under the Establishment Clause of the U.S. Constitution, stands in marked contrast to a recent decision by the Vermont Superior Court, Civil Division, holding that the Town of Franklin’s practice of opening Town Meeting with an invocations violates Article 3 of the Vermont Constitution, which prohibits compelled attendance at “any religious worship.” In Hackett v. Town of Franklin, Docket No. S 77-11 Fc, the trial court concluded that the Town’s practice constituted a form of religious worship and that the plaintiff, by virtue of her right to attend the entire meeting, had been compelled to attend. Therefore, the court concluded that the Town’s invocation practice violated Article 3. Since the Superior Court’s decision in the Hackett case was not appealed, it remains an open question in Vermont whether Article 3 is more or less restrictive than (or equivalent to) the Establishment Clause relative to legislative prayer.