Town of Greece v. Galloway

Justice Alito, joined by Justice Scalia, emphasized that Greece's initial selection process was informal rather than intentionally discriminatory. The town employee relied on a local directory containing Christian churches and failed to identify nearby non-Christian congregations, but the record showed no religious animus. In his view, a small local government acting in good faith to emulate Congress should not violate the Constitution merely because its recruitment process lacked demographic precision.

He rejected the dissent's proposed alternatives as constitutionally required rules. A nonsectarian-prayer mandate lacks historical support and would create difficult questions about screening, editing, and disciplining religious speakers. Likewise, requiring exact religious representativeness would pressure local governments to abandon legislative prayer altogether because of uncertainty and litigation risk.

Justice Alito stressed that early congressional prayer was often explicitly Christian and was used to bridge religious differences among the Founding generation. Because Congress appointed chaplains at the same time it proposed the Bill of Rights, that practice strongly indicates that legislative prayer is compatible with the original understanding of the Establishment Clause. He warned that the dissent's reasoning, if taken seriously, could improperly prohibit prayer before ordinary local legislative meetings merely because citizens attend and address their elected officials.

Justice Thomas, joined by Justice Scalia as to Part II of his opinion, argued first that the Establishment Clause is best understood as a federalism provision. In his view, the Clause originally barred Congress from establishing a national religion or interfering with state religious establishments; it did not create an individual right enforceable against state and local governments. He therefore continued to question the Clause's incorporation through the Fourteenth Amendment.

Even assuming incorporation, Justice Thomas concluded that Greece's practice did not resemble a historical establishment of religion. Founding-era establishments used legal force to compel attendance, require financial support for churches, control doctrine, or restrict political participation. The subtle social pressure alleged by the plaintiffs did not constitute that kind of actual legal coercion.

Justice Thomas thus agreed with the judgment and with the Court's application of Marsh, but he would define coercion more narrowly than Justice Kennedy's plurality analysis. In his view, neither offense nor peer pressure, however unpleasant, establishes an Establishment Clause violation absent legal compulsion.

Justice Breyer viewed the case as intensely fact-dependent and would have affirmed the Second Circuit. He did not believe sectarian legislative prayer is categorically forbidden, but he concluded that Greece's selection process was insufficiently inclusive in a community containing minority-faith residents and nearby non-Christian houses of worship.

For more than 120 meetings, nearly every invocation came from a Christian speaker; the few non-Christian prayers occurred only after the plaintiffs objected and did not continue. The town recruited almost entirely from institutions within its borders, did not meaningfully notify the public that volunteers of all faiths could participate, and did not reach out to congregations just outside the town line that served Greece residents.

In Justice Breyer's view, the town could have taken simple steps to reduce the appearance of single-faith preference, such as publicizing the opportunity to offer invocations, contacting nearby minority-faith congregations, or advising speakers not to use the invocation to convert or disparage. The House of Representatives' guidance to guest chaplains illustrated that government can encourage inclusive prayer without rewriting the content of particular prayers. Greece's failure to make reasonable efforts toward inclusion risked the religious division the Establishment Clause is meant to prevent.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, argued that Greece's practice violated the constitutional norm of equal citizenship regardless of religion. Government may not officially favor one denomination over another, especially when citizens must engage directly with government institutions to seek benefits, make requests, or participate in civic life.

She distinguished Marsh because the Nebraska Legislature's prayers were directed to legislators during an internal legislative proceeding, while Greece's meetings were participatory town-hall sessions. Residents attended to raise public concerns, seek zoning variances and permits, receive awards, and otherwise petition the board. The invited clergy faced the audience, asked attendees to stand and pray, and led them in worship before they could conduct their business with the town.

The prayers were not merely ceremonial acknowledgments of religion. For years, they were exclusively Christian and frequently invoked Jesus, the resurrection, the Holy Spirit, Pentecost, and salvation through Christ. The town neither recruited non-Christian speakers in any sustained way nor instructed its chaplains to use inclusive language or make clear that participation was voluntary.

Justice Kagan maintained that the town had constitutionally acceptable alternatives. It could have advised prayer givers to speak in broadly inclusive terms, or it could have invited clergy from varied faiths on a rotating basis. By instead identifying town government with one religion at meetings where citizens personally appeared before their representatives, Greece divided residents into those who shared the majority's faith and those who did not.