All Greek

On Monday, the Supreme Court of the United States delivered its judgment in the case of Town of Greece v. Galloway, finding constitutional the town’s practice of opening the monthly meetings of its board with a prayer read by a “chaplain of the month,” chosen from among the town’s religious congregations. I have blogged about this case here and here, because the issue it presented seems, at first glance anyway, very similar to that which the Supreme Court of Canada will have to decide in Mouvement Laïque Québécois v. City of Saguenay, which is also about a town opening its council meetings with a prayer. However, the decision of the Supreme Court of the U.S. is further proof of what I had already noted: the two cases are more different than they might seem, not only in their facts but also in the relevant precedents and legal traditions, so that there relatively few lessons to be drawn from one to the other.

Briefly, there are two main components two Justice Kennedy’s majority opinion in Town of Greece. One is an originalist or, perhaps more accurately, historicist argument to the effect that, because legislative prayer has always been a feature of American life, since the very first Congress, the same one which adopted the constitutional protections of religious freedom, paid a chaplain to open its sessions with prayer, these constitutional protections cannot be read to render such prayer impermissible. Indeed,

it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. 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. (8)

The second component of Justice Kennedy’s opinion is his insistence that “non-establishment” of religion requires not the removal of religion, whether sectarian or generic, from the public sphere, but something like non-discriminatory access for different religious sects. Legislative prayers need not be generic; they can be as sectarian as the chaplains delivering them wish them to be, at least so long as they do systematically exclude or demean people of other faiths. Indeed, it would be impermissible for government (whether the Town’s authorities or a court) to police a chaplain’s words in order to expunge from them impermissible sectarianism. Short of systematic disparagement and exclusion, it is enough that the authorities inviting chaplains not unduly favour those of one religious group.

Justice Kagan’s dissent disputes not the majority’s general arguments, but its view of the practice in the case at bar. She too thinks that history justifies and validates legislative prayer. She too thinks that prayer need not be cleansed of sectarian elements. Unlike Justice Kennedy, she thinks that the Town’s almost unvarying choice of Christian chaplains amounted to an alignment of the Town with one religion, breaching the principle not so much of separation between church and state as of equality. With more diversity, including efforts to reach out to minority religious groups, the prayer would have been fine.

None of this will be very helpful to the Supreme Court of Canada when it considers the,  prayer in Saguenay. At the level of facts, Saguenay’s prayer practice is almost the opposite of that approved in Town of Greece. The text of Saguenay’s prayer is a purportedly ecumenical one, mandated by a municipal by-law, and it is read by the mayor himself. Despite a superficial inclusiveness (more apparent than real, since it excludes non-believers as well the adherents of non-monotheistic religions), it arguably entangles the municipality with religion to a greater extent than the invocations read by invited chaplains. As for reasoning, the American historicist approach is unlikely to be of much assistance to the Supreme Court of Canada, which has consistently rejected it in Charter cases.

The Supreme Court of Canada will thus need to craft its own approach to the issue of prayer before a municipal council. Although it is always best to try to learn from what our neighbours do, it is not always possible. In this case, the American approach cannot provide much, if any, useful guidance. It is, really, all Greek to us.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota