In 2014, the Supreme Court of the United States decided Town of Greece v. Galloway, 572 U.S. 565 (2014). There, the Court held, by a 5-4 vote, that opening a monthly town board meeting with a prayer delivered by a local clergy member did not violate the Establishment Clause of the First Amendment to the United States Constitution. In 1981, the Supreme Court of New Jersey had issued a unanimous decision, Marsa v. Wernik, 86 N.J. 232 (1981), holding that the Borough of Metuchen’s practice of opening its Borough Council meetings with an invocation selected and delivered by a council member likewise did not violate the Establishment Clause. That ruling foreshadowed, to some extent, that of Greece. The date of the Marsa decision was June 8, 1981, 45 years ago today.
Writing for the Court, Justice Handler described how the invocation was handled. After making a formal announcement that the Open Public Meetings Act had been complied with, and taking a roll call, “the mayor then asks those who so wish, to rise for an invocation or silent meditation which is delivered by a particular member of the municipal council. It appears that the member who gives the invocation has himself determined or selected its contents. There is nothing to suggest that it is in any way subject to the approval of any other official or person.” This had been the practice since 1976, before which Council meetings had opened with an invocation by local clergy instead.
The trial court granted summary judgment to defendants. The Appellate Division affirmed. On further appeal, the Supreme Court unanimously affirmed, with Justices Pashman and Clifford filing separate concurring opinions.
Justice Handler applied the three-part test that appeared in United States Supreme Court Establishment Clause cases: “[T]o pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, second, must have a primary effect that neither advances nor inhibits religion, and, third, must avoid excessive entanglement with religion.” The Court determined that, in a case of this type, the “entanglement” prong was “effectively embraced by the other standards of the test.” Thus, the Justices dealt only with the first two criteria.
The Council’s practice passed the “clearly secular legislative purpose test.” Justice Handler observed that “even though some of the invocations may, when used in a public meeting, inject a religious motif that would otherwise be absent, that religious dimension is not predominant and does not in our view denigrate or dispel the presence of a secular goal. The first part of the tripartite standard tolerates some religious purpose, as long as there is also a bona fide and demonstrable secular purpose. That is present in this case. An objective of the opening exercises is to create at municipal council meetings an atmosphere conducive to the open exchanges, cooperative participation, and tolerant and conscientious deliberations of all those present -- citizens and officials alike -- who are mutually engaged in the discharge of the public’s business.”
The second prong was also satisfied. The primary effect of the practice was not to “promote or inhibit religion…. The exercise in its contextual setting is not suggestive of religion or religious ritual; it is conducted as part of a legislative session before a local legislative body. While the opening exercise is conducted by individual council members, and to that extent is under an official aegis, it does not purport to be otherwise officially sponsored or authorized; rather each opening exercise can be viewed as the beliefs or sentiments of the individual in his private capacity.” While there was some social pressure to conform to the norm, there was still individual choice as to whether to participate in the invocation. And the longevity of the practice added weight to the idea that it had “acquire[d] a predominantly nonsectarian flavor.”
The Court was careful to state, however, that variations in the particular facts presented might have resulted in a different outcome. “A change in some -- such as more distinctively religious exhortations or the more frequent and recurrent use of those that contain a religious meaning or a more pronounced official endorsement or governmental backing of any particular invocation or a greater degree of compulsion or even public or social suasion to join in the governmental exercise -- can easily tip the scales the other way.” But on the facts presented, defendants prevailed.
