No.

12-696

In the Supreme Court of the United States

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONER

DONALD B. VERRILLI, JR. Solicitor General Counsel of Record STUART F. DELERY Acting Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General SARAH E. HARRINGTON Assistant to the Solicitor General MATTHEW M. COLLETTE LOWELL V. STURGILL JR. Attorneys Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217

QUESTION PRESENTED

Whether, under this Courts decision in Marsh v. Chambers, 463 U.S. 783 (1983), a courts review under the Establishment Clause of a legislatures practice of providing for the delivery of a prayer at the beginning of a session is properly limited to assuring that the practice is not exploited to proselytize or advance any one, or disparage any other, faith or belief.

(I)

TABLE OF CONTENTS

Page Opinions below ................................................................................ 1 Jurisdiction ...................................................................................... 1 Interest of the United States ........................................................ 2 Statement ......................................................................................... 2 Summary of argument ................................................................... 7 Argument: Under this Courts decision in Marsh, legislative prayer with sectarian content is permissible if it does not proselytize or advance any one, or disparage any other, faith or belief................................................................... 9 A. Marsh neither requires nor permits a court to parse the sectarian content of prayers offered at the opening of the session of a legislative body ........ 10 B. The court of appeals erred in declaring petitioners prayer practice to be unconstitutional because of the prevalence of Christian sectarian references ......... 15 1. The court of appeals erred in parsing the sectarian content of prayers offered at Town Board meetings ........................................................................ 15 2. The Nations history of legislative bodies providing for a prayer at the opening of legislative sessions must inform the Courts analysis ............................... 18 3. Neither courts nor legislative bodies are well suited to police the sectarian content of prayers ..... 24 C. The court of appeals further erred by assessing the constitutionality of petitioners practice concerning the delivery of a prayer according to the prevalence of Christians among the prayer-givers ...... 27 Conclusion ...................................................................................... 30

(III)

IV
TABLE OF AUTHORITIES

Cases:

Page

County of Allegheny v. ACLU, 492 U.S. 573 (1989) .................................................................... 11, 13, 17, 20 Edwards v. Aguillard, 482 U.S. 578 (1987).......................... 10 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ................................................................................ 11, 20 Engel v. Vitale, 370 U.S. 421 (1962) ...................................... 21 Hernandez v. CIR, 490 U.S. 680 (1989) ................................ 25 Hinrichs v. Bosma, 400 F. Supp. 2d 1103 (S.D. Ind. 2005) ....................................................................................... 26 Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987), cert. denied, 486 U.S. 1059 (1988)......................................... 2 Lee v. Weisman, 505 U.S. 577 (1992) ........................... passim Lemon v. Kurtzman, 403 U.S. 602 (1971) ............................ 10 Lynch v. Donnelly, 465 U.S. 668 (1984) ......................... 11, 22 Marsh v. Chambers, 463 U.S. 783 (1983) .................... passim McCreary Cnty. v. ACLU, 545 U.S. 844 (2005) ............. 10, 11 McGowan v. Maryland, 366 U.S. 420 (1961) ....................... 22 Murray v. Buchanan, 720 F.2d 689 (D.C. Cir. 1983) ........... 2 Newdow v. Bush, 355 F. Supp. 2d 265 (D.D.C. 2005) ......... 25 Newdow v. Eagen, 309 F. Supp. 2d 29 (D.D.C. 2004) ........... 2 Pelphrey v. Cobb Cnty., 547 F.3d 1263 (11th Cir. 2008) ....................................................................................... 25 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) ........................................................ 23, 29 Rubin v. City of Lancaster, 710 F.3d 1087 (9th Cir. 2013) petition for cert. pending, No. 13-89 (filed July 17, 2013) ................................................................... 23, 24 Simpson v. Chesterfield Cnty. Bd. of Supervisors, 404 F.3d 276 (4th Cir. 2005) ................................................ 22 Van Orden v. Perry, 545 U.S. 677 (2005) ....................... 10, 14

V CasesContinued: Page

Wallace v. Jaffree, 472 U.S. 38 (1985) ............................. 10, 11 Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004), cert. denied, 545 U.S. 1152 (2005) ........................... 24 Zelman v. Simmons-Harris, 536 U.S. 639 (2002) .............. 29 Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) ...................................................................................... 29 Zorach v. Clauson, 343 U.S. 306 (1952) ......................... 10, 12 Constitution, statutes, and rules: U.S. Const. Amend. I (Establishment Clause)........... passim 42 U.S.C. 1983 ............................................................................ 4 N.Y. Town Law 274-b (West 2004) .................................... 23 Rules of the United States House of Representatives: Rule II.5 ............................................................................... 2 Rule XIV.1............................................................................ 2 Rules of the United States Senate: Rule IV.1(a) .......................................................................... 2 Miscellaneous: 158 Cong. Rec.: H5633 (daily ed. Aug. 2, 2012) ......................................... 22 H6305 (daily ed. Oct. 12, 2012) ........................................ 20 H6471 (daily ed. Nov. 28, 2012) ....................................... 20 S1029 (daily ed. Feb. 27, 2012) ........................................ 20 S2745 (daily ed. Apr. 26, 2012) ........................................ 20 S4379 (daily ed. June 21, 2012) ........................................ 20 S5419 (daily ed. July 26, 2012) ......................................... 20 159 Cong. Rec: H2399 (daily ed. Apr. 30, 2013) ....................................... 20 H2664 (daily ed. May 16, 2013)........................................ 20

VI MiscellaneousContinued: Page

H2848 (daily ed. May 22, 2013)........................................ 20 S3791 (daily ed. May 23, 2013) ........................................ 22 S5625 (daily ed. July 11, 2013) ......................................... 20 Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 Colum. L. Rev. 2083 (1996) ...................................................................................... 19 1 J. Continental Cong. (1774) ........................................... 18, 27 2 J. Continental Cong. (1775) ........................................... 18, 27 5 J. Continental Cong. (1776) ........................................... 18, 27 1 J. H.R. (1789) ........................................................................ 27 1 J. Senate (1789) ..................................................................... 27 Letter to the Reverend Henry D. Johns (Dec. 29, 1830), reprinted in Bird Wilson, Memoir of the Life of the Right Reverend William White, D.D., Bishop of the Protestant Episcopal Church of the State of Pennsylvania (1939) ............................................................ 19 25 Letters of Delegates to Congress: 1774 to 1789 (Paul Smith ed. 1998) ........................................................... 18 Martin J. Medhurst, From Duch to Provoost: The Birth of Inaugural Prayer, 24 J. Church & St. 573 (1982) ................................................................................ 18, 19 Office of the Chaplain, United States House of Representatives, History of the Chaplaincy, http://chaplain.house.gov/chaplaincy/history.html (last visited Aug. 1, 2013) ..................................................... 28 Office of the Chaplain, United States House of Representatives, Prayer Archive, http://chaplain. house.gov/archive/ (last visited Aug. 1, 2013) ................... 20 1 Lorenzo Sabine, Biographical Sketches of Loyalists of the American Revolution (1979) ............................. 19

VII MiscellaneousContinued: Page

Senate Historical Office, United States Senate, Senate Chaplains, http://www.senate.gov/ artandhistory/history/common/briefing/Senate_ Chaplain.htm#2 (last visited Aug. 1, 2013) ....................... 28 Town Clerks Office, Greece, NY, Instructions for Obtaining Special Use Permits, http://greeceny. gov/files/clerk/townboard/TB%20SP%20 instruct% 20other%203~09.pdf (last visited Aug. 1, 2013) ............... 23

In the Supreme Court of the United States

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-27a) is reported at 681 F.3d 20. The order of the district court (Pet. App. 28a-131a) is reported at 732 F. Supp. 2d 195.
JURISDICTION

The judgment of the court of appeals was entered on May 17, 2012. A petition for rehearing was denied on August 8, 2012 (Pet. App. 132a-133a). On October 17, 2012, Justice Ginsburg extended the time within which to file a petition for a writ of certiorari to and including December 6, 2012, and the petition was filed on that date. The petition was granted on May 20, 2013. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1)

2
INTEREST OF THE UNITED STATES

Throughout its history, and dating back to the first session of the Continental Congress in 1774, the United States Congress has appointed Chaplains to open each legislative day with a prayer. When the First Congress met in 1789, among its first orders of business was to select Chaplains for the House of Representatives and Senate. Today, both the House and Senate Rules require that each legislative day begin with a prayer from the House or Senate Chaplain or from a guest. Rules of the United States House of Representatives, Rules II.5, XIV.1; Rules of the United States Senate, Rule IV.1(a). The United States participated as amicus curiae in Marsh v. Chambers, 463 U.S. 783 (1983), in which this Court upheld the Nebraska State Legislatures practice of employing a chaplain who opened every legislative session with prayer, and has participated as a party in numerous cases concerning the constitutionality of opening legislative prayers in the United States Senate and House of Representatives. See Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987), cert. denied, 486 U.S. 1059 (1988); Murray v. Buchanan, 720 F.2d 689 (D.C. Cir. 1983); Newdow v. Eagen, 309 F. Supp. 2d 29 (D.D.C. 2004).
STATEMENT

1. The Town of Greece is a municipal corporation located in Monroe County, New York. Pet. App. 3a. As of the 2000 census, the town had approximately 94,000 residents. Ibid. The five-member Town Board is elected to govern the town and conducts official business at monthly public meetings. Ibid. Before 1999, the Board opened its meetings with a moment of silence. Ibid. In 1999, the Town Supervisor implemented a practice of inviting local clergy to offer an opening prayer at each Town Board meeting. Ibid. The Town lists the prayer

3 in each meetings official minutes, but it does not review the language of any prayer before it is delivered and does not censor any prayer for content. Id. at 3a-4a, 29a-30a. As of 2010, when the factual record in this case closed, the Town Board had not adopted a written policy governing its selection of prayer-givers or any other aspect of its opening prayer practice. Pet. App. 4a. But as a matter of practice, an employee in the Towns Office of Constituent Services has invited local clergy to deliver opening prayers. Id. at 5a. Initially, the town employee solicited clergy by telephoning all the religious organizations that were listed in the Towns Community Guide, which is published by the Greece Chamber of Commerce. Ibid. The employee later compiled a Town Board Chaplain list of individuals who had accepted invitations to give prayers. Ibid. That employee and her successors thereafter selected guest chaplains by calling individuals on the list approximately a week before each meeting until they found someone willing to deliver a prayer. Ibid. Until 2008, the list included only Christian congregations and clergy. Ibid. Nearly all of the religious congregations located within petitioners borders are Christian. Id. at 5a, 30a, 42a. A map introduced into evidence indicates that there is one Buddhist temple and one Jehovahs Witness church located in the Towns borders and that there are several Jewish congregations located just outside of its borders. Id. at 5a6a, 30a-31a, 42a-43a. Nothing in the record indicates that any of those organizations was listed in the community guide. Id. at 6a. From 1999 through 2007, every individual who delivered a prayer at a Town Board meeting was Christian. Id. at 4a. Most of the prayers that were delivered at the Boards meetings contained

4 sectarian Christian references, including references to Jesus, Jesus Christ, Your Son, the Holy Spirit, or the Holy Trinity. Id. at 7a. Other prayers used more generically theistic terms such as God of all creation and Heavenly Father. Ibid. The non-Christian prayer-givers included references to God, the Father, Lord, Allh-u-Abh (which loosely translates as God the All Glorious), Athena, and Apollo. Ibid.; see id. at 44a. Respondents are two residents of the Town of Greece who have attended Town Board meetings. See Pet. App. 7a-8a & n.2, 44a-47a. Respondent Stephens is an atheist and finds all legislative prayer to be offensive. Id. at 44a. Respondent Galloway similarly believes that prayer is inappropriate at government meetings and believes that, if legislative prayers are given, they should be non-sectarian. Id. at 45a-47a. In 2007, respondents began complaining to town officials about the Boards prayer practice, contending that the practice aligned the Board with Christianity. Id. at 8a. Town officials met with respondents and explained that the Board would accept any volunteer who wished to deliver a prayer and that the Board would not police the content of any prayer. Ibid. In 2008, non-Christian individuals delivered prayers at four of the twelve Town Board meetings. Id. at 4a. The prayer-givers included the chair of the nearby Bahai congregation, a lay Jewish man, and a Wiccan priestess. Ibid. In 2009, Christian individuals again delivered all of the prayers. Id. at 5a. 2. In February 2008, respondents filed this suit against petitioner under 42 U.S.C. 1983, asserting that the Towns prayer practice violates the Establishment Clause because its selection process prefers Christianity over other faiths and because the content of the prayers

5 is impermissibly sectarian. Pet. App. 8a.1 The district court granted summary judgment for petitioner. Id. at 28a-131a. The district court rejected respondents challenge to petitioners method of selecting prayer-givers for the Boards meetings, finding no evidence that [petitioner] intentionally excluded non-Christians from giving prayers at Town Board meetings. Id. at 73a; see id. at 69a-78a. Guided by this Courts decision in Marsh v. Chambers, 463 U.S. 783 (1983), the district court also rejected respondents argument that the sectarian content of many of the prayers violated the Establishment Clause. Pet. App. 79a-131a. The court considered the nature of the prayers that had been delivered and concluded that they did not proselytize or advance any one, or disparage any other, faith or belief. Id. at 126a. The court explained that many of the prayers that respondents considered to be sectarian were indistinguishable from the prayers that respondents considered to be nonsectarian except for the fact that the prayers ended with the phrase in Jesus name. Ibid. The court rejected respondents arguments that all sectarian legislative prayers violate the Establishment Clause and that petitioner was required to direct potential prayer-givers to deliver inclusive ecumenical prayers. Id. at 127a; see id. at 127a-130a. 3. The court of appeals reversed. Pet. App. 1a-27a. The court acknowledged that the touchstone of [the courts] analysis must be Marsh. Id. at 16a. Reading Marsh in light of this Courts subsequent cases, the court concluded that, although the Establishment
Respondents also sued the Town Supervisor, but the district court dismissed that claim as redundant of the claim against petitioner. Pet. App. 8a-9a.
1

6 Clause prohibits a legislative prayer practice that, viewed in its entirety, * * * advance[s] a single religious sect, it does not prohibit all legislative invocations that are denominational in nature. Id. at 14a-15a. The court of appeals stated that its role was to determine whether the town, through its prayer practice, has established particular religious beliefs as the more acceptable ones, and others as less acceptable. Id. at 17a.2 Applying that inquiry to the totality of circumstances presented in this case, the court of appeals concluded that the towns prayer practice must be viewed as an endorsement of a particular religious viewpoint. Pet. App. 19a; see id. at 18a-26a. In the courts view, petitioners practice of inviting clergy almost exclusively from places of worship located within [petitioners] borders virtually ensured that a Christian viewpoint would be represented by prayer-givers. Id. at 19a. The court also noted that most of the prayers at issue here contained uniquely Christian references. Id. at 20a. The court stated that [t]he sectarian nature of the prayers * * * was not inherently a problem and emphasized that [t]he prayers in the record were not offensive in the way identified as problematic in Marsh, because they did not preach conversion, threaten damnation to nonbelievers, downgrade other faiths, or the like. Id. at 21a; see Marsh, 463 U.S. at 794-795 ([T]he content of [legislative] prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.).
Respondents abandoned on appeal their claim that petitioner intentionally discriminated against non-Christians in its selection of prayer-givers. Pet. App. 10a.
2

7 Nevertheless, the court concluded that the sectarian content of many of the prayers, taken together, violated the Establishment Clause because an objective, reasonable observer would believe that the towns prayer practice had the effect of affiliating the town with Christianity. Pet. App. 24a. In so holding, the court of appeals ascribe[d] no religious animus to the town or its leaders, but faulted petitioner for failing to explain to the public the nature of its prayer program and failing to inform[] prayer-givers that invocations were not to be exploited to proselytize or to disparage other religions. Id. at 22a. The court of appeals concluded by noting that, although legislative prayers are not inherently unconstitutional, see Pet. App. 25a, municipalities may have considerable difficulty structuring a legislative prayer practice in a way that, in the court of appeals view, avoids the appearance of religious affiliation, id. at 26a. The court stated that even a single circumstance may appear to suggest an affiliation and acknowledged that, [t]o the extent that the state cannot make demands regarding the content of legislative prayers, * * * municipalities have few means to forestall the prayer-giver who cannot resist the urge to proselytize. Id. at 27a; see id. at 24a-25a (Nor can a municipality insulate itself from liability by adopting a lottery to select prayergivers or by actively pursuing prayer-givers of minority faiths whose members reside within the town.). These difficulties, the court of appeals cautioned, may well prompt municipalities to pause and think carefully before adopting legislative prayer. Id. at 27a.
SUMMARY OF ARGUMENT

In Marsh v. Chambers, 463 U.S. 783 (1983), this Court held that a state legislatures practice of employ-

8 ing a chaplain to deliver prayers at the beginning of its legislative sessions does not violate the Establishment Clause. The Courts decision relied primarily on the history of legislative prayer in this country, which has existed without pause since the Continental Congress and was adopted as the official practice of the United States House of Representatives and Senate at the same time those bodies were drafting and approving the First Amendment. In light of that history, the Court concluded that a practice of legislative prayer that is not exploited to proselytize, to disparage any religion, or to advance any one faith or belief does not violate the Establishment Clause. The Court admonished that, in such circumstances, courts should not parse or evaluate the content of prayer, a warning the Court has reiterated in later cases. The court of appeals erred in its application of Marsh. The court agreed with petitioner that petitioners practice of providing for the offering of a prayer at the beginning of Town Board meetings has not been exploited to proselytize or to denigrate any faith; it also accepted the uncontested finding that petitioner did not intentionally favor any one faith over any other. The court of appeals nevertheless held that petitioners practice violates the Establishment Clause because it has almost always resulted in participation by Christian prayer-givers, many of whom have employed identifiably Christian words in their prayers. In the court of appeals view, a reasonable observer would therefore understand petitioners prayer practice as an establishment of Christianity. That was error. Under the principles announced in Marsh, which relied heavily on the history of legislative prayer in this country, a prayer practice that is not problematic in the

9 ways identified in Marsh (as petitioners practice concededly is not) does not amount to an unconstitutional establishment of religion merely because most prayergivers are Christian and many or most of their prayers contain sectarian references. The unbroken history of the offering of prayer in Congress, for example, has included a large majority of Christian prayer-givers and a substantial number of prayers with identifiably sectarian references. Neither federal courts nor legislative bodies are well suited to police the content of such prayers, and this Court has consistently disapproved of government interference in dictating the substance of prayers.
ARGUMENT UNDER THIS COURTS DECISION IN MARSH, LEGISLATIVE PRAYER WITH SECTARIAN CONTENT IS PERMISSIBLE IF IT DOES NOT PROSELYTIZE OR ADVANCE ANY ONE, OR DISPARAGE ANY OTHER, FAITH OR BELIEF

This Courts decision in Marsh v. Chambers, 463 U.S. 783 (1983), established that the practice of providing an opportunity for a prayer at the beginning of a legislative bodys day or session, when not exploited to proselytize, advance, or disparage any faith or belief does not violate the Establishment Clause. Although the court of appeals purported to apply Marsh, its view of what Marsh requires was erroneous. The court did not contest the district courts finding that the prayer practice at issue is not problematic in the ways proscribed by Marsh. But the court nevertheless based its decision in significant part on the sectarian content of the prayers that were delivered at Town Board meetings. Concluding that too many of the prayers contained Christian references, and that too many of the prayer-givers were Christian, the court of appeals held that petitioners

10 practice violates the Establishment Clause. Marsh, however, calls for neither that type of inquiry into the content of prayers nor that type of court-ordered sectarian diversity. Because the court of appeals erred in applying Marsh to petitioners challenged practice, reversal is warranted.
A. Marsh Neither Requires Nor Permits A Court To Parse The Sectarian Content Of Prayers Offered At The Opening Of The Session Of A Legislative Body

1. In Marsh v. Chambers, supra, the Court considered whether the Nebraska State Legislatures practice of paying a chaplain to open every legislative session with a prayer violated the Establishment Clause. Rather than apply the three-part test that had been articulated in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), the Court examined the history and practice of providing for such prayers in Congress and in state legislatures throughout the country. Marsh, 463 U.S. at 786-795. Finding that [t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country, the Court concluded that such a practice does not violate the Establishment Clause. Id. at 786, 792. This Court has since described the decision in Marsh as an exception, grounded in historical practice, to the Courts usual approach to Establishment Clause questions. See McCreary Cnty. v. ACLU, 545 U.S. 844, 859 n.10 (2005); Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987); see also Lee v. Weisman, 505 U.S. 577, 603 n.4 (1992) (Blackmun, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 63 (1985) (Powell, J., concurring). 3
The Court has indicated on several occasions, including in Marsh, that certain other government invocations that include religious
3

11 In reaching its conclusion, the Court in Marsh noted that, [f]rom colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of religious disestablishment and religious freedom. 463 U.S. at 786. Both the Continental Congress and the First Congress which drafted and approved the First Amendment adopted the practice of opening every day with a prayer delivered by a paid chaplain. Id. at 787-788. The Court recognized that, [s]tanding alone, historical patterns cannot justify contemporary violations of constitutional guaranteesbut concluded that there is far more here than simply historical patterns. Id. at 790. Relying on the First Congresss near simultaneous authorization of a paid legislative chaplain and adoption of the First Amendment, the Court reasoned that historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congresstheir actions reveal their intent. Id. at 788-790. In light of that history, the Court concluded that the men who wrote the First
references and have a similarly long history in this countrysuch as this Courts use of the phrase God save the United States and this Honorable Courtalso do not violate the Establishment Clause. See Marsh, 463 U.S. at 786; Zorach v. Clauson, 343 U.S. 306, 313 (1952); see also Van Orden v. Perry, 545 U.S. 677, 716 (2005) (Stevens, J., dissenting); McCreary Cnty., 545 U.S. at 886 (Scalia, J., dissenting); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 29 (2004) (Rehnquist, C.J., concurring in judgment); id. at 37 (OConnor, J., concurring in judgment); County of Allegheny v. ACLU, 492 U.S. 573, 672 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Wallace, 472 U.S. at 84 (Burger, C.J., dissenting); Lynch v. Donnelly, 465 U.S. 668, 693 (1984) (OConnor, J., concurring); id. at 714 (Brennan, J., dissenting).

12 Amendment did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. Id. at 788. Significantly, the Court concluded that the Framers did not consider opening prayers as a proselytizing activity or as symbolically placing the governments official seal of approval on one religious view, even when such prayers were consistently delivered by a single chaplain who was identified with a particular faith. Marsh, 463 U.S. at 792. The Court explained: In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, [w]e are a religious people whose institutions presuppose a Supreme Being. Ibid. (quoting Zorach v. Clauson, 343 U.S. 306, 313 (1952)).4

Petitioner is incorrect in suggesting in the alternative (Br. 52-53) that, when a legislature provides an opportunity for opening prayers at its deliberative sessions, it creates a limited public forum. As discussed in the text, the historical purpose of providing such an opportunity is not to provide a forum for private prayer; it is to solemnize the bodys proceedings and to seek divine guidance for the bodys deliberations.

13 When considering the particular features of Nebraskas legislative prayer practice, moreover, the Court rejected the challengers argument that the prayers violated the Establishment Clause because they were in the Judeo-Christian tradition. Marsh, 463 U.S. at 793. The Court explained that where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief, [t]he content of the prayer is not of concern to judges. Id. at 794-795. In such circumstances, the Court held, it is not for [judges] to embark on a sensitive evaluation or to parse the content of a particular prayer. Id. at 795. 2. The court of appeals correctly concluded that the decision in Marsh governs the constitutionality of legislative prayer practices and should govern the inquiry here. Pet. App. 10a-13a. The court of appeals erred, however, in its application of Marsh to petitioners practice concerning the offering of prayers at the opening of Town Board sessions because it misconstrued this Courts later decision in County of Allegheny v. ACLU, 492 U.S. 573 (1989), as requiring that a court evaluating legislative prayer examine the sectarian nature of such prayers. Pet. App. 13a. In County of Allegheny, this Court held, inter alia, that a countys display of a crche in the county courthouse violated the Establishment Clause because the display had the effect of communicating a government allegiance to a particular religious belief. 492 U.S. at 598-613. In responding to Justice Kennedys dissenting opinion, the majority distinguished the legislative prayer practice upheld in Marsh. Acknowledging that history cannot legitimate practices that demonstrate the governments allegiance to a particular sect or creeda proposition that Marsh also

14 embraced, see 463 U.S. at 794-795the Court stated that [t]he legislative prayers involved in Marsh did not violate this principle because the particular chaplain had removed all references to Christ. County of Allegheny, 492 U.S. at 603. The court of appeals here viewed that statement as requiring the court to graft a reasonable observer inquiry onto the Marsh analysis, including by examining the content of the prayers at issue. Pet. App. 13a. That was error. The Court in Marsh did note that the chaplain employed by the Nebraska State Legislature described his prayers as nonsectarian and Judeo Christian. 463 U.S. at 793 n.14. The Court also noted that, [a]lthough some of [the chaplains] earlier prayers were often explicitly Christian, [he] removed all references to Christ after a 1980 complaint from a Jewish legislator. Ibid. But the Court did not rely on those facts in rejecting the challenge before it; to the contrary, as noted above, the Court emphasized that it would not parse the content of the prayers absent any indication that the prayer opportunity ha[d] been exploited to proselytize or advance any one, or to disparage any other, faith or belief. Id. at 794-795.5 The Courts characterization of Marsh in County of Alleghenywhich did not concern legislative prayertherefore did not alter the rule announced in Marsh itself. In Lee v. Weisman, 505 U.S. 577 (1992), the Court in the course of holding that the delivery of a prayer at a public high school graduation violated the Establishment Clauseexplained that school officials could not play a role in dictating the content of prayer delivered at the ceremony even in a good-faith effort to ensure that
See Van Orden, 545 U.S. at 688 n.8 (Rehnquist, C.J., plurality opinion) (In Marsh, the prayers were often explicitly Christian.).
5

15 the prayer was inclusive and nonsectarian and therefore less potentially divisive. Id. at 588-592. As the Court observed, while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, the [Religion] Clauses exist to protect religion from government interference. Id. at 589. The circumstances of Lee differ from those in this case, for here the offering of a prayer serves to solemnize and invoke Divine guidance for the legislative bodys own deliberations. Marsh, 463 U.S. at 792; see also Lee, 505 U.S. at 596-597) (noting that [t]he atmosphere at the opening of a session of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the constraining potential of a public school event at which attendance is essentially mandatory for all graduating students). Still, the court of appeals suggestion, see Pet. App. 22a, that petitioner should have been more involved in directing the content of the prayers delivered at Town Board meetings creates many of the concerns regarding involvement in the content of prayer this Court warned against in Lee.
B. The Court Of Appeals Erred In Declaring Petitioners Prayer Practice To Be Unconstitutional Because Of The Prevalence Of Christian Sectarian References 1. The court of appeals erred in parsing the sectarian content of prayers offered at Town Board meetings

The court of appeals correctly noted that the prayers delivered by private individuals at petitioners Town Board meetings were not offensive in the way identified as problematic in Marsh because they did not preach conversion, threaten damnation to nonbelievers, downgrade other faiths, or the like. Pet. App. 21a. The

16 court also correctly noted that [t]he sectarian nature of the prayers * * * was not inherently a problem. Ibid. But the court nevertheless believed it was necessary to examine the prevalence of Christian references in the prayers that were delivered, explaining that its Establishment Clause analysis turned on the extent to which the selection process employed by petitioner results in a perspective that is substantially neutral amongst creeds. Id. at 20a. In so doing, the court rejected petitioners argument that, under Marsh, a court should not consider the content of prayers absent an independent showing that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. Id. at 20a-21a n.6 (quoting Marsh, 463 U.S. at 794-795). After examining the content of the prayers, see id. at 20a (noting that most of the prayers at issue here contained uniquely Christian references), the court of appeals concluded that a reasonable observer would feel, based on the totality of the circumstances presented, that petitioners prayer practice identified [petitioner] with Christianity in violation of the Establishment Clause, id. at 21a-22a; see id. at 19a (concluding that petitioners prayer practice must be viewed as an endorsement of a particular religious viewpoint, based in part on the content of the prayers). That is not a proper application of Marsh. The Court in Marsh established that a legislative prayer practice that has not been exploited to proselytize or advance any one faith or belief, or to disparage another, does not establish religion. 463 U.S. at 794. The limits concerning prayers that proselytize, advance one faith, or disparage another are consistent with the traditional purposes of legislative prayer to solemnize

17 the legislatures own proceedings and to invoke divine guidance for its deliberations. See id. at 792. Under that standard, petitioners prayer practice is constitutional. It is not clear to what extent the Court intended the word advance to have a role beyond being an elaboration upon proselytize, encompassing a broader range of conduct with the same general purpose. But to the extent it did, when read in context, the Court in Marsh presumably used advance to encompass as well a government affiliation with or a declaration of government allegiance to a particular faith or belief. The Court explained that legislative prayer does not offend the Establishment Clause because the Framers did not view it as symbolically placing the governments official seal of approval on one religious view. Ibid. The Court in County of Allegheny similarly noted that a historical practice could not legitimate a modern-day practice that demonstrates the governments allegiance to a particular sect or creed. 492 U.S. at 603. Thus, a legislative body may not adopt a practice concerning the offering of a prayer that has the effect of affiliating the government with a particular religion or otherwise declaring the governments allegiance to a particular religioneither through the governments own actions or through exploitation of the prayer opportunity by the prayer-givers themselves.6 Marsh makes clear, howevContrary to petitioners suggestion (see, e.g., Pet. Br. 21-22, 44), Marshs prohibition on the exploitation of an opportunity for prayer to proselytize or advance one faith, or to disparage another, applies both to the government entity providing the opportunity and to the prayer-givers accepting the opportunity, whether employed by the government or not. Under Marsh, a legislature could not, for example, invite private opening prayer-givers who proselytize or disparage another faith, even if the legislature itself did not have that purpose.
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18 er, that a legislative prayer practice that results in the delivery of a substantial majority of prayers containing Christian references does not in itself have the effect of affiliating the government with Christianity or declaring the governments allegiance to Christianity.
2. The Nations history of legislative bodies providing for a prayer at the opening of legislative sessions must inform the Courts analysis

a. The Court in Marsh relied heavily on the history of the offering of prayers in Congress. See 463 U.S. at 786-795. That history reveals that prayers offered in the House of Representatives and Senate have historically included (and to a lesser degree continue to include) frequent sectarian references. On its second day of business in 1774, the Continental Congress resolved that the Reverend Jacob Duch, an Episcopalian clergyman, should open the following days meeting with prayer. See 1 J. of the Continental Cong. 26 (1774) (Journals). See also Martin J. Medhurst, From Duch to Provoost: The Birth of Inaugural Prayer, 24 J. Church & St. 573, 574 (1982) (Medhurst). On the following morning, September 7, 1774, Reverend Duch appeared before the Continental Congress in his pontificals, and read several prayers in the established form, and then read the collect for the seventh day of September, which was the thirty-fifth psalm. Id. at 577. Following the reading of the prescribed Anglican prayers for that day, Reverend Duch then struck out into an extemporary prayer, ibid., that called upon the Lord our Heavenly Father, King of Kings, and Lord of lords, and that concluded with the following words: All this we ask in the name and through the merits of Jesus Christ thy son, our Savior, Amen, 25 Letters of Delegates to Congress: 1774 to 1789 551-552 (Paul Smith ed. 1998). In subse-

19 quent sessions of the Continental Congress, Reverend Duch continued the practice of opening legislative sessions with prayers that included similar sectarian references. See 2 Journals 12 (1775); 5 Journals 530 (1776). For example, the prayer Reverend Duch delivered in the Continental Congress after the Declaration of Independence was issued followed the same form as his prayer of September 7, 1774i.e., he addressed his prayer to lord, our heavenly Father, high and mighty, King of kings and Lord of lords, and concluded by stating, [a]ll this we ask in the name, and through the merits of Jesus Christ, thy Son and our Savior. 1 Lorenzo Sabine, Biographical Sketches of Loyalists of the American Revolution 389 (1979); see also Medhurst 580. Since the adoption of the Constitution, prayers in Congress have similarly included sectarian Christian references. For example, Bishop William White, who was chosen as Senate Chaplain in 1790, regularly referred to Jesus in his official prayers. See Letter to the Reverend Henry D. Johns (Dec. 29, 1830), reprinted in Bird Wilson, Memoir of the Life of the Right Reverend William White, D.D., Bishop of the Protestant Episcopal Church of the State of Pennsylvania 322 (1939). The practice of delivering prayers with sectarian references has continued with every Congress. See Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 Colum. L. Rev. 2083, 2104 (1996) (noting that, [f]rom Americas earliest days to the present times, congressional legislative prayers have been true sacral prayers, and many of them, true Christian prayers); see also Pet. App. 127a (noting that legislative prayer in Congress * * * is often overtly sectarian). Although Congress today invites nonChristians to participate as guest chaplains, the great

20 majority of prayer-givers are still Christians and a substantial proportion of the prayers delivered at least in the House of Representatives may be viewed as containing identifiably sectarian references. Br. of Some Members of Cong. as Amici Curiae in Supp. of Pet. 10-20 (stating that a majority of the prayers delivered in the House of Representatives during the 112th Congress included Christian content); see, e.g., 159 Cong. Rec. H2848 (daily ed. May 22, 2013); id. at H2664 (daily ed. May 16, 2013); id. at H2399 (Apr. 30, 2013); 158 Cong. Rec. H6471 (daily ed. Nov. 28, 2012); id. at H6305 (daily ed. Oct. 12, 2012); see also 159 Cong. Rec. S5625 (daily ed. July 11, 2013); 158 Cong. Rec. S5419 (daily ed. July 26, 2012); id. at S4379 (daily ed. June 21, 2012); id. at S2745 (daily ed. Apr. 26, 2012); id. at S1029 (daily ed. Feb. 27, 2012). 7 Thus, the very historical practice on which this Court relied in Marsh to conclude that the offering of a prayer at the beginning of the session of a legislative body is permissible has included a great number of sectarian references, the overwhelming majority of which have been Christian. Such prayers are permissible notwithstanding their sectarian content because they serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 36 (2004) (OConnor, J., concurring in the judgment); see also County of Allegheny, 492 U.S. at 596 n.46. As the Court in Marsh explained, such a prayer invok[ing] Divine guidance for the days deliberations is a tolerable acknowledgement of beliefs widely held
The text of the opening prayers offered in the House of Representatives for the 106th through 113th Congresses can be viewed at http://chaplain.house.gov/archive (last visited Aug. 1, 2013).
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21 among the people of this country. 463 U.S. at 792. It does not have the effect of declaring the governments affiliation with or allegiance to a particular faith. See id. at 792, 794-795. Where, as here, legislative prayers neither proselytize nor denigrate any faith, the inclusion of Christian references alone does not constitute an impermissible advancement or establishment of religion. The court of appeals therefore erred in declaring petitioners practice unconstitutional based on an examination of the content of the prayers, contrary to this Courts admonition that courts have no place embark[ing] on a sensitive evaluation or pars[ing] the content of such prayers. Marsh, 463 U.S. at 794-795. When the Constitution permits prayer in a government setting (as the parties agree is the case with prayers offered at the beginning of a legislative bodys day), the government must allow the prayer-giver to deliver the prayer in accordance with his own religious beliefs, including by praying to his own religious deity and in his own religious idiomas long as the limits recognized in Marsh itself are respected by the government and prayer-giver. The principle that the government may not dictate the content of religious prayer is deeply embedded in the First Amendment. As this court explained in Lee: It is a cornerstone principle of our Establishment Clause jurisprudence that it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government. 505 U.S. at 588 (quoting Engel v. Vitale, 370 U.S. 421, 425 (1962)). Thus, as noted, when Christian prayer-givers have opened sessions of the House of Representatives, they

22 have frequently invoked the name of Jesus. Similarly, when non-Christian guests have delivered opening prayers in Congress, they have frequently invoked the names of deities and other figures in distinctly nonChristian terms. For example, a rabbi who recently served as a guest chaplain addressed his opening prayer in the Senate to Adon Olam, Master of the Universe. 159 Cong. Rec. S3791 (daily ed. May 23, 2013). Similarly, a Muslim imam recently quoted Islamic scripture and called on the words of the Prophet Muhammed in his opening prayer before the House of Representatives. 158 Cong. Rec. H5633 (daily ed. Aug. 2, 2012). b. As this Court has noted, the history of this country encompasses an unbroken tradition of formally invok[ing] Divine guidance on [our] public bodies entrusted with making the laws, Marsh, 463 U.S. at 792, and is replete with official references to the value and invocation of Divine guidance in deliberations, Lynch v. Donnelly, 465 U.S. 668, 675 (1984). It is that very history that insulates the practice of legislative prayer from challenge under the Establishment Clause so long as consistent with the practices purposethe opportunity for prayer is not exploited in the ways identified in Marsh. The Court in Marsh thus concluded that the Founding Fathers looked at invocations as conduct whose . . . effect . . . harmonize[d] with the tenets of some or all religions, Marsh, 463 U.S. at 792 (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)) (alterations in original), rather than as proselytizing activity or conduct that symbolically place[d] the governments official seal of approval on one religious view, ibid. (internal quotation marks omitted). When a prayer is delivered in the proceedings of a governmental body that does not have the type of histor-

23 ical pedigree discussed in Marsh, it may be useful in mitigating Establishment Clause concerns for the body to take steps to clarify to a reasonable and informed observer that its practice is intended and designed to fall within that tradition. See Simpson v. Chesterfield Cnty. Bd. of Supervisors, 404 F.3d 276, 284 (4th Cir. 2005) (upholding a county board of supervisors prayer practice in part because the invocations [were] directed only at the legislators themselves rather than the public) (internal citation omitted). For example, a governmental body may choose to publish a statement expressing the purpose of the invocation or publicizing neutral and inclusive selection criteria. See Rubin v. City of Lancaster, 710 F.3d 1087, 1097-1099 (9th Cir. 2013) (upholding city council prayer practice where city opened participation to all and had publicized the nonsectarian purpose of its practice), petition for cert. pending, No. 13-89 (filed July 17, 2013); cf. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 823, 841842 (1995) (concluding that Universitys support of religious student group on same terms that it supported other student groups did not violate Establishment Clause in part because the University ha[d] taken pains to disassociate itself from the private speech involved by requiring public disclaimers). A governmental body may also opt to structure its proceedings to reflect the role that the delivery of a prayer has historically played in legislative bodies such as the United States Congress. In some respects, for example, petitioners Town Board differs from Congress because some members of the public attend Board meetings to conduct business directly with the Board rather than simply to observe the proceedings. See, e.g., N.Y. Town Law 274-b (West 2004) (authorizing towns to

24 issue special-use permits for various land-use purposes); http://greeceny.gov/files/clerk/townboard/TB%20SP%20 instruct%20other%203~09.pdf (last visited Aug. 1, 2013) (instructions for obtaining special-use permits, including presenting request to the Board at a hearing convened by the Board). A practice of providing for the delivery of a prayer may more clearly fall within the type of historical tradition examined in Marsh if such a body structures its sessions to allow individuals who wish to conduct business before the Board but prefer not to be present for a prayer to enter and leave with little comment and for any number of reasons. Lee, 505 U.S. at 596-597; cf. Wynne v. Town of Great Falls, 376 F.3d 292, 295 (4th Cir. 2004) (when plaintiff arrived late to town council meeting to avoid prayer, she was not permitted to participate in the meeting even though she had signed up and was listed on the agenda), cert. denied, 545 U.S. 1152 (2005).
3. Neither courts nor legislative bodies are well suited to police the sectarian content of prayers

The court of appeals acknowledged the admonitions concerning governmental scrutiny of the content of prayer in Marsh and disclaimed undertaking such an analysis. Pet. App. 20a. The court nevertheless suggested that it could easily discern which prayers contained sectarian references by counting such references as Jesus Christ and the Holy Trinity. Id. at 20a-21a; see id. at 7a. That approach cannot be reconciled with Marsh. Courts should not be in the business of parsing the theological content or meaning of particular prayers. It is true that references to Jesus Christ are generally Christian references. But courts have no business attempting to decide, for example, whether members of the group Jews for Jesus are Jewish, Christian, both,

25 or something else entirely. See, e.g., Rubin, 710 F.3d at 1100-1101 (noting that the very act of decidingas a matter of constitutional law, no lesswho counts as a religious figure or what amounts to a sectarian reference not only embroils judges in precisely those intrareligious controversies that the Constitution requires us to avoid, but also imposes on us a task that we are incompetent to perform); Pelphrey v. Cobb Cnty., 547 F.3d 1263, 1272 (11th Cir. 2008) (same). Similarly, because a court could not enjoin or place limits on the prevalence of only sectarian Christian prayers, the court of appeals approach would inevitably require courts to decide questions such as whether references to the Holy Spirit are uniquely Christian, whether prayers addressed to Allah are uniquely Muslim, and whether references in particular prayers to King of Kings are Jewish, Christian, or Muslim. Courts should play no role in rendering a verdict on such theological questions. See, e.g., Hernandez v. CIR, 490 U.S. 680, 699 (1989) (It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith.); Lee, 505 U.S. at 616-617 (Souter, J., concurring) (I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible, than drawing distinction[s] between sectarian religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster.). It is not the place of the federal Judiciary, a Town Board, or Members of Congress to compile a list of religious words that may be used in legislative prayers and a list of religious words that may not, so long as the prayer opportunity is not exploited to proselytize or

26 ally the government with a particular faith or disparage another. Nor is it an answer to suggest that nonsectarian Judeo-Christian prayers are permissible while other types of prayers are not. Judeo-Christian prayers exclude those who do not believe in monotheism (for example, those who practice the Hindu faith), Newdow v. Bush, 355 F. Supp. 2d 265, 289 n.29 (D.D.C. 2005) (citation omitted), and presuppose[] one God who is generally thought to be omniscient, omnipotent, benevolent, and responsive to prayer, Hinrichs v. Bosma, 400 F. Supp. 2d 1103, 1123 (S.D. Ind. 2005). See also Lee, 505 U.S. at 617 (Souter, J., concurring) (noting that [m]any Americans who consider themselves religious are not theistic, and that some, like several of the Framers, are deists who would question * * * a plea for divine advancement of the countrys political and moral good). The court of appeals thus observed that it is not even clear that the removal of references to Christ by the chaplain at issue in Marsh rendered all post-1980 prayers [in the Nebraska State Legislature] nondenominational. Pet. App. 17a. The Establishment Clause frowns on the governments endorsement of a civic religion that includes nonsectarian prayer * * * within the embrace of what is known as the Judeo-Christian tradition and makes no explicit references to the God of Israel, or to Jesus Christ, or to a patron saint, just as much as it frowns on the governments allegiance to a particular religious sect. Lee, 505 U.S. at 589.

27
C. The Court Of Appeals Further Erred By Assessing The Constitutionality Of Petitioners Practice Concerning The Delivery Of A Prayer According To The Prevalence Of Christians Among The Prayer-Givers

The court of appeals also erred in determining that petitioners practice violates the Establishment Clause because petitioners process of selecting prayer-givers has nearly always resulted in the selection of a Christian prayer-giver. Pet. App. 19a-20a. The court of appeals accepted the district courts conclusion that petitioners selection process was free of religious animus. Id. at 10a, 22a. The court also acknowledged that nearly every religious institution within petitioners borders is a Christian denomination. Id. at 5a-6a, 19a. And the court accepted petitioners contention that it would have accepted any and all volunteers who asked to give the prayer, regardless of their religious affiliation (if any). Id. at 20a. The court of appeals nevertheless viewed petitioners practice as unconstitutional because its religiously neutral selection criteria resulted in the delivery of predominantly Christian prayers rather than a perspective that is substantially neutral amongst creeds. Ibid. The history of prayers offered in connection with legislative deliberation in this country makes clear that a legislative body need not affirmatively solicit a courtmandated variety of different religious faithsfrom inside and outside of the borders governed by the legislative bodyin order to avoid running afoul of the Establishment Clause. As noted, the United States House of Representatives and Senate have a long and virtually unbroken tradition of employing official chaplains. Every House and Senate Chaplain has belonged to a Christian sect, a fact of which this Court was well aware

28 when it decided Marsh. See Govt Amicus Br. at 11-12, 16-17, Marsh, No. 82-23.8 The Court explained that the long-term appointment of a chaplain of one denomination does not advance[] the beliefs of a particular church absent proof that such appointment stemmed from an impermissible motive. Marsh, 463 U.S. at 793. Even in Marsh, where the challenged practice involved the long-term employment of a chaplain of one faith, this Court explained that legislative prayer presents no more potential for establishment than the provision of school transportation, beneficial grants for higher education, or tax exemptions for religious organizations. Id. at 791 (internal citations omitted). It is difficult to understand how petitioners practice, which affords an opportunity to all who volunteer, regardless of their faith, could present more potential for establishment

The Chaplains who delivered opening prayers in the Continental Congress and the First and Second Congresses were each from Christian denominations. The Continental Congress selected and paid Episcopal clergyman Reverend Jacob Duch. See 1 Journals 26 (1774); 2 Journals 12 (1775); 5 Journals 530 (1776). In the First Congress, the Senate elected as its Chaplain Episcopal bishop Reverend Samuel Provoost, see 1 J. of Senate 10, 16 (1789), while the House elected as its Chaplain Presbyterian minister Reverend William Linn, see 1 J. of H.R. 11-12, 26 (1789). Since that time, it appears that all the Chaplains in the United States Senate and House of Representatives, who deliver most of the opening prayers in those bodies, also have been from Christian denominations. See http:// www.senate.gov/artandhistory/history/common/briefing/Senate_ Chaplain.htm#2e; (listing all Senate Chaplains) (last visited Aug. 1, 2013); http://chaplain.house.gov/chaplaincy/history.html (listing all House Chaplains) (last visited Aug. 1, 2013). The same is true of most of the private clergy who have delivered opening prayers in the Senate and House of Representatives in recent years. See Br. of Some Members of Cong. as Amicus in Supp. of Pet. 9.

29 than the practices of the Nebraska State Legislature or the United States Congress. Ibid. Indeed, the court of appeals view that petitioner should have implemented what amounts to a sectarianquota system raises more First Amendment problems than it might solve. First, it would require petitioner to closely police the content of prayers delivered by private individuals. As discussed at pp. 15-27, supra, that alone would offend the Establishment Clause. Second, it would require petitioner affirmatively to solicit participation by particular non-Christian sects outside petitioners borders until the diversity of religious viewpoints presented at Board meetings reached the point of satisfying the court of appeals undefined substantially neutral amongst creeds standard. See Pet. App. 20a. That type of selective invitation and viewpointbalancing would require the government to engage in behavior that is not neutral as to all religions. As Justice Souter explained in his concurring opinion in Lee: Nor does it solve the problem to say that the State should promote a diversity of religious views; that position would necessarily compel the government and, inevitably, the courts to make wholly inappropriate judgments about the number of religions the State should sponsor and the relative frequency with which it should sponsor each. 505 U.S. at 617. Such a system is certainly not required by Marsh, which held that a legislatures selection of persons to deliver a prayer at the beginning of its session need only be free of any intent to advance a particular religion. See 463 U.S. at 793. Nor is such an approach consistent with Establishment Clause principles in other contexts. In Zelman v. Simmons-Harris, 536 U.S. 639, 643-662 (2002), for example, the Court held that the government may offer

30 school vouchers for use at any private school, including a religious school, as long as the government uses neutral eligibility rules and the choice of school is left to private citizens. That was so even though up to 96% of voucher recipients chose to enroll in religious schools. See id. at 658-659; see also Rosenberger, 515 U.S. at 837-846 (holding that a public universitys provision of financial assistance to a student religious group did not violate the Establishment Clause where such aid was provided to student groups generally without regard to whether they had a religious affiliation); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8-14 (1993) (holding that a deaf student enrolled in a religious school was entitled to the services of a publicly employed sign-language interpreter where the interpreters services were generally available to children with hearing impairments).
CONCLUSION

The judgment of the court of appeals should be reversed. Respectfully submitted.

AUGUST 2013