DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. § 19831, in which the plaintiffs, Susan Galloway and Linda Stephens ("Plaintiffs"), allege that the practice of the Town of Greece's ("Defendant" or "the Town") of opening Town Board meetings with prayer violates the Establishment Clause of the First Amendment to the United States Constitution. Plaintiffs, who are Jewish and Atheist, respectively, maintain that the Town has "aligned itself with" Christianity, because the vast majority of clergy selected to give prayers at town board meetings were Christian. In this regard, Plaintiffs contend that the Town has intentionally excluded non-Christians from offering prayers at meetings. Additionally, Plaintiffs contend that the town has impermissibly allowed "sectarian" prayer by members of both Christian and non-Christian faiths.

Now before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, Defendants' motion for summary judgment is granted, Plaintiffs' motion for summary judgment is denied, and this action is dismissed.

BACKGROUND

Defendant is a municipal corporation located in Monroe County, New York. Defendant John Auberger ("Auberger"), who is being sued in his official capacity, has, at all relevant times, been the elected Supervisor of the Town. At all relevant times the Greece Town Board has met once each month. Prior to 1999, the Town observed a moment of silence at the start of Town Board meetings. In 1999, the Town began inviting local clergy to offer oral prayer at the start of Board meetings. Auberger instituted this practice after observing that the Monroe County Legislature started its sessions with prayer. At all relevant times the Moment of Prayer was listed as part of the Board's meeting agenda.

The Town has no written policy concerning prayer at Board meetings. The Town has never set any guidelines concerning the content of prayers, and has never asked to review the wording of prayers prior to their delivery at Town Board Meetings. Town Officials state that they would not censor an invocation, even if it was offensive, or even if it was not a prayer in the traditional sense. Firkins Dep. 187, 231-232, 249-251; Auberger Dep. 174-189.2 For example, the Town has indicated that Atheists are welcome to offer "prayers." The Town maintains that anyone who expressed an interest in giving an invocation at a Town Board meeting would have been permitted to do so, without having to provide any information concerning the content of the prayer. The Town has never rejected a request to offer a prayer. At the same time, however, the Town has never publicized that individuals are welcome to offer prayers.

Religious groups in the Town3 are predominantly Christian. Stephens Dep. at 29. In that regard, although Plaintiffs have each lived in the Town more than thirty years, neither was personally familiar with any mosques, synagogues, temples, or other non-Christian places of worship within the Town. See, Stephens Dep. at 28-30; Galloway Dep. at 36-37. More specifically, neither Galloway, Stephens, or Auberger for that matter, were aware of any Jewish, Muslim, Mormon, Buddhist, or Hindu houses of worship in the Town. Galloway Dep. at 36; Stephens Dep. at 28-29; Auberger Dep. at 63-64, 109.

At all relevant times, responsibility for inviting clergy to deliver prayers at Board meetings was delegated to the Town's Office of Constituent Services ("Constituent Services").4 Three Constituent Services clerical employees, Linda Sofia ("Sofia"), Geri Wagoner ("Wagoner"), and Michele Fiannaca ("Fiannaca"), were responsible for this task at different times.

March 1999-February 2005

Sofia was the first employee given the job of inviting clergy to give prayers at Town Board meetings, and she performed that duty for most of the period at issue in this lawsuit, from approximately March 1999 until approximately February 2005. (Defendants' Statement of Undisputed Facts [#33-3] ¶¶ 17, 21). Sofia arranged for clergy to give invocations by telephoning religious organizations that were listed in the "Community Guide," a directory published periodically by the Greece Chamber of Commerce. Sofia randomly called organizations listed in the Community Guide until she found a clergy member who was willing to give an invocation. The record does not contain copies of the actual Community Guide(s) published during the relevant period that Sofia performed this task. Instead, the record contains only a copy of a Community Guide dated "Spring/Summer 2006," published after Sofia ceased performing the task of inviting clergy. (Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 6). Defendants produced this copy as part of discovery, but indicate that they do not know from where this particular document came. (Defendants' Supplemental Discovery Responses, Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 8, response no. 10) ("Defendants do not know who provided this exact document.").

Sofia states that she never intentionally failed to contact any organization listed in the Community Guide. (Defendants' Statement of Undisputed Facts [#33-3] ¶ 17). On this point, Sofia, who was not deposed as part of this action, states in an affidavit: "I did not intentionally omit any church, but called all churches on the list until I was able to find a person who agreed to give a short invocation at the meeting. However, my recollection5 of who I called and when is not clear at all." (Sofia Aff. [# 33-11] ¶ 5). Sofia indicates that she never declined to contact an organization based on its religious affiliation. (Id. at ¶ 7).

In or about January 2003, Sofia began keeping a list of all clergy who agreed to give prayers at Town Board Meetings. (Defendants' Appendix to Local Rule 56.1 Statement, Exhibit 14, numbered pages 32-35). Sofia referred to the document as her "Town Board Chaplains" list, and indicates that the list was not intended to include all potential clergy, but only those who had accepted her invitations to give invocations. (Sofia Aff. [# 33-11] ¶ 6) ("I recorded the name of the person who agreed to give the short invocation. My list was not a list of all potential prayer-givers, but only those persons who I called and who agreed to give the invocation.").

Between March 1999 and February 2005, representatives of the following religious organizations gave invocations at Town Board meetings: Greece Assembly of God (14 times); First Bible Baptist Church (9 times); West Side Baptist Church (4 times); Holy Name of Jesus Church (2 times); Our Mother of Sorrows Church (8 times); St. John the Evangelist Church (1 time); St. Charles Borromeo Church (2 times); St. Lawrence Church (3 times); English Road Alliance Church (4 times); Shepherd's Heart Christian Fellowship (7 times); Hope Lutheran Church (1 time); Aldersgate United Methodist Church (4 times); Lakeshore Community Church (3 times); New Testament Christian Church (1 time); and John Knox Presbyterian Church (1 time).6

As noted earlier, the record does not contain contemporaneous Community Guide listings of religious organizations for the period 1999 through 2005. However, all of the religious groups listed above appear in the Spring/Summer 2006 Community Guide that is contained in the record. The 2006 listing also contains a number of religious groups that did not give invocations during the period March 1999 through February 2005, and specifically: Greece Baptist Church, Latta Road Baptist Church, Our Lady of Mercy Church, St. Mark's Church, Trinity Episcopal Church, Northgate Bible Chapel, Lutheran Church of Concord, Messiah Lutheran, Greece United Methodist Church, Park Ridge Free Methodist, Wesley United Methodist Church, Church of Jesus Christ of Latter Day Saints, Immanuel Church of the Nazarene, Trinity Church of the Nazarene, Victory Community Church, The Good News Community Church, Lawson Road Church of Christ, New Way Christian Faith Center, Calvary Chapel of Greece, Abundant Life Worship Center, Bethany Presbyterian, Covenant Orthodox Presbyterian, Lakeview Community Church, and Parma Greece United. (Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 6). It is unclear whether any of these groups were listed in the earlier version(s) of the Community Guide that Sofia actually used. However, to the extent that they were, Sofia maintains that she would have called them to invite a representative to give a prayer, and that if a representative did not give a prayer, and thus did not appear on the Town Board Chaplains list, it was because he or she declined to do so. (Sofia Aff. [#33-11] ¶¶ 4-5, 7; Sofia Aff. [# 37-5] ¶ 4).

March 2005-December 2006

Between approximately March 2005 and "some time prior to 2007," Wagoner was given the responsibility for inviting clergy to deliver invocations at Town Board meetings. (Defendants' Statement of Undisputed Facts, ¶¶ 21, 25). Like Sofia, Wagoner was not deposed as part of this litigation, however, she too provided an affidavit. (Wagoner Aff. [# 33-12]). When Wagoner assumed the job from Sofia, Sofia gave Wagoner her Town Board Chaplains list, which as discussed above, was a list of all individuals who had agreed to give prayers since January 2003. Subsequently, Wagoner used Sofia's Town Board Chaplains list to contact clergy. Wagoner may also have used the Community Guide, although she does not specifically remember doing so.78 (Wagoner Affidavit at ¶ 6). Wagoner randomly called organizations listed on the Town Board Chaplains List, and possibly the Community Guide, and did not intentionally fail to call any group. (Id. ¶¶ 6, 8) ("There were no churches that I specifically did not call."). Wagoner never rejected a request by anyone to give a prayer. (Id. at ¶ 8).

Between March 2005 and December 2006, representatives of the following religious organizations gave invocations at Town Board meetings: First Bible Baptist Church (1 time); West Side Baptist Church (1 time); Holy Name of Jesus (1 time); Our Lady of Mercy (1 time); Our Mother of Sorrows (1 time); St. John the Evangelist (1 time); St. Lawrence Church (1 time); English Road Alliance Church (1 time); Messiah Lutheran (1 time); Hope Lutheran Church (1 time); Park Ridge Free Methodist (1 time); Trinity Church of the Nazarene (1 time); Lakeshore Community Church (1 time); Calvary Chapel of Greece (2 times); Covenant Orthodox Presbyterian (1 time); and Lakeview Community Church (2 times).

All of the religious groups which Wagoner invited to give prayers were listed in the Community Guide dated Spring/Summer 2006.9 The 2006 listing also contains a number of religious groups that did not give any invocations between 1999 and 2006, and specifically: Greece Baptist Church, Latta Road Baptist Church, St. Mark's Church, Trinity Episcopal, Northgate Bible Chapel, Lutheran Church of Concord, Wesley United Methodist Church, Church of Jesus Christ of Latter Day Saints, Immanuel Church, Victory Community Church, Good News Community Church, Lawson Road Church of Christ, New Way Christian Faith Center, Abundant Life Worship Center, Bethany Presbyterian, and Parma Greece United.

January 2007-Present

In or about January 2007, Fiannaca was assigned the task of inviting clergy to give prayers at Town Board meetings. At that time, Wagoner gave Fiannaca an accumulated file of information concerning potential prayer-givers, consisting of Sofia's Town Board Chaplins list and additional information that Wagoner had compiled. Subsequently, Fiannaca used the lists that she received from Wagoner, and updated them with the names of religious organizations appearing in the Religious Services Directory of the Greece Post, a weekly local newspaper. Fiannaca described her practice of inviting clergy to give prayers, as follows:

Fiannaca Aff. [# 33-10] ¶ 6. Fiannaca periodically reviewed the list of religious organizations published in the Greece Post, and updated her list with any new listings. Fiannaca Affidavit at ¶ 6; Fiannaca Dep. at 21-23, 25. Fiannaca would also cross out the names of individuals, but only if they were no longer associated with a particular church, or if they asked to be removed from the list. Fiannaca Dep. at 9-10, 37. Fiannaca intended that her list would include every religious organization listed in the Greece Post. Id. at 21-22, 24. Fiannaca never used the Community Guide or the yellow pages to invite clergy. Id. at 27.10 Fiannaca believed that she was only supposed to invite individuals from religious organizations geographically located within the Town of Greece, and she believed that the organizations on her list fit that description. Id. at 14-17.

Fiannaca randomly called churches or clergy on her list, until she found someone who was willing to give the invocation. Fiannaca Dep. 6-7, 11-12, 51. However, there were certain clergy on the list who Fiannaca felt she could call whenever she could not find anyone else, because they would always agree to give the invocation. Fiannaca Dep. at 53-54. Fiannaca stated that she had called everyone on her list at one time or another. Fiannaca Dep. at 10. In that regard, Fiannaca indicated that she believed she called the Bahai faith group in or about 2006. Id. at 62-63. Upon further questioning, Fiannaca stated that she was not sure whether she was thinking of the Bahai group or another church, the Morningstar church, but that if she had to bet, she believed it was the Bahai group. Id. at 70 ("If I'm going to bet, I think it was Bahai. But then I'm thinking, geez, I'm wondering if it was the Morningstar one that I was talking about. I don't know."); see also, id. at 73 ("I think I did [call Bahai] a couple of years ago when I first saw them, but I don't remember, but I'm thinking it could have been Morningstar. It was one or the other, but you know what? I have called practically everybody on that list.") (emphasis added). Fiannaca never rejected any request to give an invocation. Fiannaca Aff. at ¶ 12.

As part of discovery in this action, the Town produced the file that Fiannaca used when inviting clergy to give invocations.11 The file included Sofia's Town Board Chaplain list, as well as lists compiled by Wagoner and possibly others. See, Plaintiff's Appendix to Local Rule 56.1 Statement, Tab 7 (Consisting of the file that Wagoner gave Fiannaca, as subsequently updated by Fiannaca). More specifically, in addition to the Town Board Chaplain list, the file contained a document with the handwritten title "new list," which appears to have been created prior to October 2006.12 (Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 7, pp. 6, 15). The list contains the names of thirty-two religious organizations, and includes all of the names listed in the Spring/Summer 2006 Community Guide, except: Church of Jesus Christ of Latter Day Saints, Abundant Life Worship Center, Parma Greece United, Immanuel Church of the Nazarene, Victory Community Church, The Good News Community Church, and the New Way Christian Faith Center.

The file also contained a document dated "10/2/2006," entitled "MasterPeopleList-Query." Plaintiff's Appendix to Local Rule 56.1 Statement, Tab 7, pp. 24, 28. The list contains thirty-seven names, and includes all of the organizations listed in the Greece Community Guide "Spring/Summer 2006" except five: Church of Jesus Christ of Latter Day Saints, Immanuel Church of the Nazarene, Victory Community Church, Abundant Life Worship Center, and Parma Greece United. Id. The list also contains three organizations that do not appear in the Spring/Summer 2006 Community Guide: Trinity Church, Destiny Prepar [sic] Church, and Morning Star Church. Id. The list also contains all of the organizations listed in an undated copy of the Religious Services Directory from the Greece Post, which appears in the record, except for nine: Abundant Life Worship Center; Baha'i Faith; Christian Bible Church; Episcopal Church of the Ascension; Journey Christian Church; Lakeside Presbyterian Church; St. George's Episcopal Church; Victory Community Church; and Victory Mountain Christian Fellowship. Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 5.13

The file also contains a spread-sheet type document dated "2/20/2007." Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 7, pp. 14, 16. There is essentially no testimony from Fiannaca concerning this document, except that she testified that she did not personally type the document. The list contains the names of the same thirty-seven organizations that appear on the "10/2/2006" list, and is alphabetized.

Another updated list in Fiannaca's file is dated March 13, 2008, contains forty names.14 The list is essentially the same as the "2/20/2007" list, except that it adds four additional names: Baha'i Faith,15 Victory Community, Journey Christian Church, and Christian Bible Church. Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 7, pp. 9-10. As mentioned earlier, these names appear on the undated copy of the Greece Post that is in the record, but did not appear on the "10/2/2006" list.

Fiannaca also added names to her lists when asked to do so. (Fiannaca Dep. at 8). For example, after this litigation was commenced, Fiannaca added Jen Zarpentine ("Zarpentine"), a Wiccan Priestess, and Dave Chikowsky ("Chikowsky"), a Jewish layman, to the list at their request. (Fiannaca Dep. at 18, 29).

Between January 2007 and December 2008, representatives of the following religious organizations gave invocations at Town Board meetings: First Bible Baptist Church (3 times), Our Mother of Sorrows (2 times), St. John the Evangelist (1 time), New Testament Christian Church (1 time), Greece Assembly of God (3 times), St. Charles Borromeo (2 times), Morning Star Christian Fellowship (1 time), Lakeshore Community Church (1 time), Lakeview Community Church (1 time), Covenant Orthodox Presbyterian Church (1 time), St. Mark's Church (1 time), Our Lady of Mercy (1 time), The Savior's Chapel (1 time), Aldersgate United Methodist Church (1 time), and Baha'i Assembly of Greece (1 time). (Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 32). Additionally during this period, Chikowsky delivered prayers on two occasions, and Zarpentine delivered a prayer on one occasion. (Id.).

Neither Sofia, Wagoner, nor Fiannaca has ever attended a Town Board meeting or heard a prayer delivered by any of the individuals whom they invited to deliver invocations. There is no evidence in the record that Sofia, Wagoner, or Fiannaca have any religious affiliation or beliefs, or that they hold any views concerning the religious groups discussed in this Decision and Order.

As for the geographic location of the various religious groups discussed in this action, Plaintiffs have submitted an exhibit, consisting of a "Google Earth" map, which purports to show the "locations of certain religious institutions in and around the Town of Greece." Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 22, Tievsky Aff. ¶ 4. The map16 shows that the vast majority of religious organizations on the Town's prayer lists are located within the Town of Greece. The map does not show any Jewish synagogues, Churches of Jesus Christ of Latter Day Saints, or Baha'i faith organizations, as being located within the Town of Greece. Id.

The map further indicates the presence of "Chua Tanh Tinh Temple of Tranquility," a Buddhist temple, and an unnamed "Jehovah's Witnesses" church,17 within the Town of Greece, neither of which appeared on the Town's prayer lists. There is no indication that either of these organizations were ever listed in the Community Guide or the Greece Post.

The map also purports to show that the following organizations are located outside of the Town of Greece: Abundant Life Worship Church, Church of the Ascension Episcopal, Congregation B'Nai Israel, Good News Community Church, Lakeside Presbyterian Church, Morning Star Missionary Baptist, St. George's Episcopal Church, Temple Beth David, Temple Emanu-El, and Wesley United Methodist Church. Id. Of these, the only ones that appear on any of the Town's prayer lists18 are: Good News Community Church, located in Spencerport, and Wesley United Methodist Church, located in the City of Rochester. Wesley United is listed in both the Community Guide and the Greece Post, and Good News is listed in the Greece Post.19 Although the Abundant Life Worship Center appears on both the Community Guide list and the Greece Post list, and St. George's Episcopal appears in the Greece Post listing, both churches indicate that they are located in the neighboring Town of Hilton, not the Town of Greece.

Many of the prayers that were given at Board meetings were explicitly Christian, and referred to Jesus or Jesus Christ. Many of the prayers end with the phrase, "in Jesus' name," or similar language. Plaintiffs, who are not Christians, found such prayers offensive and inappropriate. In September 2007, Plaintiffs began complaining to the Town regarding the prayers.

Stephens is an atheist and does not consider herself to be religious. Stephens Deposition at 12. On one occasion, Stephens attended a church service at the request of her cousin, and was offended because the service was "so exclusive. It's... aimed at a particular group of people that my values diverge from theirs [sic]." Id. at 14. Stephens believes that there is "a strict separation between church and state." Id. at 23. Stephens believes that prayers given in the U.S. Congress are inappropriate, because prayers "have no part in the government." Id. at 20; see also, id. at 38: "I personally, what I think the government should be doing is to take the whole question out of government. You know, that's my preference."20 In that regard, Stephens finds all legislative prayers to be offensive, and finds that "sectarian prayers" are "more offensive than nonsectarian ones." Id. at 20. Stephens maintains that sectarian prayers "are not as inclusive as nonsectarian prayers, and we have diversity in the Town of Greece as well as in this country, so [nonsectarian prayers are] more acceptable." Id. at 31. Stephens states that her goal in this lawsuit is to stop "certain kinds of prayers," namely "sectarian" prayers, by which she means "prayers that invoke a particular religion," or "the particulars of a particular religion." Id. at 21, 30. Stephens indicates that non sectarian prayer "encompasses the three major religions." Id. at 39. Stephens initially stated that a prayer containing a reference to Allah would be sectarian, because it evokes a particular religion. Id. at 32. Subsequently, though, she stated that she did not know whether such prayer could be nonsectarian. Id. at 34-35. Stephens states that a prayer ending with the words "in Jesus's name," or which included the names Jesus, Jesus Christ, or Holy Spirit, would be sectarian. Id. at 45, 64-65. However, Stephens states that the terms God, Almighty, Lord God, and Father, are acceptable. Id. at 65. It is fair to say that Stephens personally opposes all legislative prayer, but accepts the idea that legislative prayer is lawful if it does not invoke a particular religion. Id. at 20-21. Stephens has attended numerous Town Board meetings at which prayers have been given. Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 10, Stephens Aff. ¶ 9.

Galloway also believes that prayer is inappropriate at government meetings. Galloway Dep. at 49 (Stating that she should not "be forced to sit through a meeting—a prayer, a religious prayer when I come for the Town Board meetings"); see also, id. at 45 (Stating that prayer "should not be part of our government meeting."). Galloway states that sectarian prayer "is generally specific to one religion, and nonsectarian is more inclusive and I'd like to say universal but, you know, I know not everybody even in a nonsectarian prayer is—you know, is covered, or whatever you want to call it." (Id. at 8). She adds, "I believe that [legislative] prayers should be as inclusive as possible, and I also believe that there should be no reference to—that would be taken as specific to one religion." Id. at 18. In that regard, Galloway further states: "I'm asking them to make them [the prayers] nonsectarian so that they are inclusive to the ... majority of the people, to different faiths. I realize that that will not probably please all [people]." Id. at 53. According to Galloway, a nonsectarian prayer is "not specific to necessarily one religion." Id. at 9. Galloway believes that a prayer to "Father," "God," and "Lord God" would be nonsectarian. Id. at 13, 17, 52. On the other hand, Galloway states that a prayer including the name Jesus would be sectarian, regardless of whether it was uttered by a Catholic, a Protestant, or a Mormon. Id. at 19-20. Similarly, Galloway states that a Wiccan prayer using the name "Apollo," or a prayer to polytheistic gods, would be sectarian. Id. at 23, 25. Galloway indicates that prayers using the names Jehovah, Allah, Abba Father, and Alpha and Omega are also sectarian. Id. at 60, 64. Galloway states that in the context of legislative prayer, if a legislature cannot determine whether a particular term is sectarian or not, it should investigate whether the term is "truly nonsectarian or sectarian." Id. at 64. Galloway has attended numerous Town Board meetings at which prayers have been given, including meetings on January 16, 2007, September 18, 2007, October 17, 2007, and July 15, 2008. Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 9, Galloway Aff. ¶¶ 7-8.

On September 18, 2007, Galloway addressed the Town Board and accused it of "promoting the Christian religion." Pl. Stmt. Of Facts ¶ 411. More specifically, Galloway stated:

Id. On September 24, 2007, Plaintiffs met with Town officials and complained about "the sectarian prayers." Id. at ¶ 412. During this meeting, in response to Plaintiffs' question, the Town told Plaintiffs that an Atheist could give the invocation if he or she wanted. Def. Stmt. Of Facts ¶ 12. Plaintiffs allege that Town officials also told them that if they did not like the prayer that was being offered, they could leave the meeting. In October 2007, Galloway again complained about the prayers being "sectarian instead of nonsectarian." Pl. Stmt. Of Facts ¶ 414.

Plaintiffs maintain that most of the prayers offered during the relevant period were "sectarian." Specifically, Plaintiffs contend that, between 1999 and early 2009, 73.6%21 of the challenged prayers "included sectarian language or references." Pl. Stmt. of Facts ¶ 317.22 Plaintiffs maintain that during some years, the prayers were up to 90% sectarian. Id. at ¶¶ 318-397. In 2008, the prayers were 58.3% sectarian, according to Plaintiffs. Id. at ¶ 398.

Many of the allegedly sectarian prayers are indistinguishable from prayers that Plaintiffs find unobjectionable, except that they end with the phrase, "in Jesus' name," or similar words. Some of the allegedly sectarian prayers do not mention the name of Jesus. In the remainder of this paragraph, the Court will set forth a number of prayers that were given at Town Board meetings, which Plaintiffs maintain are sectarian:

Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 33, Ex. 515, (1/18/00 prayer by Rev. Edward Palumbos); Id. Tab 32, Exhibit 500.

Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 33, Ex. 520, (6/20/00 prayer by Fr. Frank Falletta); Id. Tab 32, Exhibit 500.

Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 33, Ex. 571 (11/16/04 prayer by Fr. Frank Falletta); Id. Tab 32, Exhibit 500.

Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 33, Ex. 590 (3/20/07 prayer by Fr. John Forni); Id. Tab 32, Exhibit 500.

Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 33, Ex. 603 (7/15/08 prayer by Jewish layman Dave Chikovsky); Id. Tab 32, Exhibit 500.

Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 33, Ex. 614 (12/16/08 prayer by Thomas Lynch of Baha'i Community of Greece); Id. Tab 32, Exhibit 500. Again, Plaintiffs maintain that all of the foregoing prayers are sectarian. Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 32. In that regard, Plaintiffs contend that these prayers are sectarian even though they do not mention the name of Jesus. Pl. Appx. to Rule 56.1 Stmt., Tab 32.

On the other hand, Plaintiffs maintain that some of the prayers offered at Town Board meetings were non-sectarian. For example, Plaintiffs contend that the following prayers are not sectarian:

Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 33, Ex. 547 (9/17/02 prayer by Pastor Doug Morgante); Id. Tab 32, Exhibit 500.

Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 33, Ex. 604 (8/19/08 prayer by Pastor John Firbo); Id. Tab 32, Exhibit 500.

Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 33, Ex. 610 (7/17/07 prayer by Rev. Tim Brown); Id. Tab 32, Exhibit 500. Again, Plaintiffs indicate that the foregoing prayers are non-sectarian. Plaintiffs also maintain that prayers using the following terms and phrases are not sectarian: "Heavenly Father;"24 "In the company with the blessed Lord, may we see the face of Almighty God;"25 "Creator and ever-creating God, you have given us the image of a kingdom of Heaven or a kingdom of your realm as the ideal to which our human settlement should strive;"26 and "Gracious sovereign Lord God."27 Plaintiffs' Appendix to Local Rule 56.1 Statement, Tab 32, Exhibit 500.

On February 28, 2008, Plaintiffs commenced the instant action. Plaintiffs allege that the Town violated the Establishment Clause by aligning itself with "a single faith," meaning Christianity. In that regard, the Complaint states:

Complaint ¶¶ 1-3. On the other hand, Plaintiffs also object to Chikowsky's "sectarian" Jewish prayer. Id. at ¶ 71. Plaintiffs describe the alleged "Establishment Clause Violation" as follows:

Complaint ¶¶ 77-79 (emphasis added). Plaintiffs allege that Defendants have a policy and practice "of excluding non-Christians as prayer-givers and of sponsoring sectarian prayers," in violation of the Establishment Clause. Id. at ¶ 82. Plaintiffs demand declaratory and injunctive relief, nominal damages, and attorney's fees and costs. Id. at ¶¶ 84-87. As for declaratory relief, Plaintiffs seek a declaration that "Defendants' prayer practices violate the U.S. Constitution." Id. at ¶ 84. As for injunctive relief, Plaintiffs seek a permanent injunction ordering the Town "to refrain from employing sectarian practices in the context of Town Board meeting prayers." Id. at 85.

Following discovery, the parties filed the subject cross-motions for summary judgment. In support of their motion, Plaintiffs contend, first, that they have standing to challenge the Town's practices, since they were exposed to the allegedly unconstitutional practices at Town Board meetings.

Next, Plaintiffs maintain that all sectarian legislative prayer violates the Establishment Clause, and that only "non-sectarian, broadly inclusive prayers are constitutionally permissible." Pl. Memo of Law [#32-1] at 8.28 Plaintiffs insist that, "[t]hose [prayers] that use the terminology of, or are otherwise associated with, any particular faith or denomination, are not." Id. As to their position, Plaintiffs interpret the U.S. Supreme Court's decision in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) ("Marsh"), and the court's subsequent decision County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 603, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) ("Allegheny"), as mandating that legislative prayer be "nonsectarian." Id. at 10. According to Plaintiffs, legislative prayer "should be inclusive and ecumenical." Id. at 17. Plaintiffs argue that "sectarian language alone offends the Establishment Clause because it, by its very nature, associates the government with one faith." Pl. Reply Memo [#43] at 3.29 Plaintiffs maintain that the Town must warn invited clergy that their prayers should be "inclusive" and "omit references to any particular deity." Pl. Memo of Law in Opposition [#38] at 7-8. Plaintiffs insist that the Town need not inquire into the content of prayers, and can "reasonably assume" that individuals who accept the invitation to offer prayer will make a good-faith effort to comply with the Town's request. Id. at 13.

Additionally, Plaintiffs contend that the Town's procedure for selecting clergy is unconstitutional, since it "prefers Christianity over other faiths." Pl. Memo of Law [#32-1] at 18. Plaintiffs maintain that such preferential treatment was intentional, and that "[t]he Town has systematically excluded minority-faith prayer-givers." Pl. Memo in Opposition [# 38] at 1. In particular, Plaintiffs state that Sofia, Wagoner, and Fiannaca refused to include minority-faith groups on the Town's lists of clergy. Pl. Reply Memo [#43] at 11 ("[T]here is credible evidence that Sofia, Wagoner, and Fiannaca each used multiple resources to compile the official prayergiver list, yet consistently and purposefully excluded the minority faiths [listed] in those resources."). Plaintiffs allege that the Town refused to extend invitations to churches that were listed in the Greece Post and Chamber of Commerce Community Guide and "ignored anecdotal information about local minority-faith communities. Pl. Memo in Opposition [# 38] at 15-16. On this point, Plaintiffs contend that the Town excluded those of the Mormon, Jehovah's Witness, Buddhist, and Bahai faiths. Pl. Memo of Law [# 32-1] at 20. Plaintiffs also complain that the Town failed to publicize the fact that citizens are permitted to offer prayers. Id. at 2330 (Stating that the Town has not "done any outreach to add minority faiths to their lists of potential invitees.").

In response, Defendants contend, at the outset, that the claims against Auberger in his official capacity should be dismissed, since they are merely repetitive of the claims against the Town.

Defendants further maintain that Plaintiffs lack standing to challenge the Town's legislative prayer practice, since they did not suffer any injury. In that regard, Defendants state that Plaintiffs were never denied the opportunity to give an invocation, and that merely being exposed to sectarian prayer is not an injury where such prayer does not proselytize or disparage other faiths. Additionally, Defendants contend that Plaintiffs could not be harmed by the exclusion of certain religious congregations from the Town's list, since Plaintiffs were not even aware of such groups until this litigation.31 Defendants also argue that Plaintiffs lack standing to challenge prayers given at meetings which they did not attend. Finally, Defendants submit that Plaintiffs lack standing because the relief they seek is unconstitutional, since it would require the Town to "become excessively entangled in church doctrine in order to determine if a prayer is sectarian or not." Def. Memo of Law at 9.

Defendants further maintain that sectarian prayer is permissible, pursuant to Marsh, if it is not exploited to proselytize, disparage, or advance a particular religion. (Def. Memo of Law at 14, 16). Additionally, Defendants contend that the Town's prayer practice is more inclusive than the one approved in Marsh, since it included clergy from many different denominations. Furthermore, Defendants state that the Town's procedure for selecting clergy is constitutional, since the lists were compiled from various sources and included various denominations, and since the persons who compiled the lists never excluded any group based on their beliefs. Id. at 18. Defendants further maintain that, even assuming that the three clerks intentionally omitted minority faiths from the prayer list, the Town is not liable.32

ANALYSIS

Rule 56

Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert. denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996). Once that burden has been established, the burden shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993).

Section 1983

The relevant legal principles governing actions against a municipality under Section 1983 are well settled:

Section 1983 provides, in pertinent part:

Roe v. City of Waterbury, 542 F.3d 31, 36-37 (2d Cir.2008). In this regard,

White-Ruiz v. City of New York, No. 93CIV.7233(DLC)(MHD), 1996 WL 603983 at *7 (S.D.N.Y. Oct. 22, 1996) (citation omitted). "The mere assertion that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference." Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (citation and internal quotation marks omitted).

The Establishment Clause of the First Amendment to the United States Constitution "prohibits the establishment of a national or state church, but the [Supreme] Court has never construed its mandate to apply only to this most obvious proscription. It has long been accepted that the Establishment Clause prohibits government from officially preferring one religious denomination over another[.]" Skoros v. City of New York, 437 F.3d 1, 16 (2d Cir.2006) (citations omitted).

With these general legal principles in mind, the Court will proceed to consider the parties' various arguments.

Official-Capacity Claims Against Auberger

As indicated above, Defendants maintain that the claims against Auberger in his official capacity should be dismissed, since they are redundant of the claims against the Town. The Court agrees, since "[c]laims against individual defendants in their official capacities are really claims against the municipality and, thus, are redundant when the municipality is also named as a defendant." Zachary v. Clinton County, N.Y., No. 1:01CV1281 (FJS/DRH), 2003 WL 24197685 at *2 (N.D.N.Y. Jan. 10, 2003) (citation and internal quotations omitted), aff'd, 86 Fed. Appx. 451 (2d Cir.2004). Accordingly, the claims against Auberger in his official capacity are dismissed.

Standing

Defendant maintains that Plaintiffs do not have standing, and that this Court therefore lacks subject-matter jurisdiction. The general legal principles concerning standing are well settled. "Article III of the Constitution limits the judicial power of the United States to the resolution of cases and controversies. U.S. Const. art. III, § 2. This limitation is effectuated through the requirement of standing." Cooper v. U.S. Postal Service, 577 F.3d 479, 489 (2d Cir.2009).

Fulton v. Goord, 591 F.3d 37, 41 (2d Cir. 2009) (citations omitted). The injury alleged must be "concrete and particularized," meaning that "the injury must affect the plaintiff in a personal and individual way." Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 70 (2d Cir.2001), cert. den., 534 U.S. 827, 122 S.Ct. 68, 151 L.Ed.2d 34 (2001).

Recently, the Second Circuit observed that "there is uncertainty concerning how to apply the injury in fact requirement in the Establishment Clause context." Cooper v. U.S. Postal Service, 577 F.3d at 490. Generally, in the context of an Establishment Clause challenge to legislative prayer, a plaintiff may establish standing by showing that he attended a meeting where he was exposed to prayer which he found offensive. Altman v. Bedford Cent. Sch. Dist., 245 F.3d at 72-74("[S]tanding to assert an Establishment Clause claim may rest ... on the plaintiff's direct exposure to the challenged activity"). A plaintiff may also have standing by virtue of being a municipal taxpayer. Id. at 72-74; Pelphrey v. Cobb County, Ga. ("Pelphrey"), 547 F.3d 1263, 1280 (11th Cir.2008) ("A municipal taxpayer has standing to challenge a violation of the Establishment Clause by a municipality when the taxpayer is a resident who can establish that tax expenditures were used for the offensive practice.") (citations omitted).

In Cooper v. U.S. Postal Service, the plaintiff was offended by a religious display at a contract postal unit ("CPU") operated by a church-related organization. When the plaintiff complained, the CPU operator told the plaintiff that if he was offended by the display, he could use another postal facility. Id., 577 F.3d at 488. The Second Circuit held that such facts were sufficient to establish standing. Id. at 491 ("Cooper claims that he was made uncomfortable by direct contact with religious displays that were made a part of his experience using the postal facility nearest his home, and that upon complaint, he was advised to alter his behavior. Under Sullivan [v. Syracuse Housing Auth., 962 F.2d 1101 (2d Cir.1992)], these allegations state an injury in fact sufficient to support standing."). In this case, Plaintiffs felt uncomfortable and offended by the allegedly sectarian prayers, and they contend that when they complained, Town officials told them that they could leave the meetings if they did not like the prayers. Pursuant to Cooper, the Court finds that these facts suffice to establish standing.34

Selection Procedures

Plaintiffs claim as part of this action that the Town intentionally excluded "minority faiths" from delivering prayers. The instant case presents the same issues discussed in Pelphrey v. Cobb County, GA, 448 F.Supp.2d 1357 (N.D.Ga.2006), affirmed, 547 F.3d 1263 (11th Cir.2008). The Pelphrey case concerned two separate county boards, the Cobb County Board of Commissioners ("Board of Commissioners") and the Cobb County Planning Commission ("Planning Commission"), both of which had a policy of inviting clergy to deliver prayers at the start of meetings. The plaintiffs alleged that both boards' selection procedures violated the Establishment Clause because they favored Christian churches. With regard to the Board of Commissioners, the record indicated that the "administrative specialist" tasked with inviting clergy to deliver prayers used a variety of sources to compile a master list of potential prayer-givers. Id. at 1362. The master list was made up primarily of Christian denominations, with a "great diversity in [Christian] denomination and cultural affiliation." Id. The administrative specialist had information concerning other "minority faiths," such as a "Jehovah's Witness congregation and a Bahai assembly," but those organizations were not included in the master list. Id. at 1362-1363. It was undisputed, though, that the administrative specialist never took "into account the beliefs held by a religious group in deciding whom to include on her Master List." Id.

The Planning Commission's selection procedure was different. In that regard, the deputy clerk responsible for inviting clergy to deliver prayers at Planning Commission meetings relied primarily on the telephone yellow pages, and there was evidence that she had intentionally excluded certain faiths:

Id. at 1363 (citations to the record omitted). The deputy clerk indicated that she did not recall why those groups were crossed-out. Id. at 1363-64. Moreover, none of the crossed-out organizations had ever been invited to deliver a prayer.

In considering whether the county's selection procedures violated the Establishment Clause, the district court in Pelphrey began by reciting that section of the Supreme Court's decision in Marsh which held that, "Absent proof that the [Christian] chaplain's [sixteen-year period of] reappointment stemmed from an impermissible motive, we conclude that his long tenure does not in itself conflict with the Establishment Clause." Id. at 1370 (citation omitted). The district court continued:

Id. at 1370-71 (citation omitted). Nevertheless, the district court found that this high standard was met with regard to the Planning Commission's selection procedure, since it "appear[ed] ... that certain faiths were categorically excluded from the list of prospective speakers based on the content of their faith." Id. at 1373-74. In reaching its determination, the court noted, inter alia, that the "minority faiths" had been crossed out. Id. Consequently, the district court found that the Planning Commission's selection procedures violated the Establishment Clause.

On the other hand, the district court found no such violation as to the Board of Commissioners' selection procedures. Id. at 1372-73. In that regard, the court noted that the administrative specialist's list was "quite diverse," consisting of "denominationally and culturally heterogeneous Christian organizations," as well as non-Christian organizations. Additionally, there was no evidence that the administrative specialist had excluded any organization from her master list based on religious considerations. Id.35 Significantly, the district court held that the Establishment Clause was not violated merely because some so-called minority faith organizations were excluded from the Board of Commissioner's list:

Id. at 1371. The Eleventh Circuit affirmed. Pelphrey, 547 F.3d at 1281-1282. In doing so, the circuit court observed that, "The `impermissible motive' standard does not require that all faiths be allowed the opportunity to pray. The standard instead prohibits purposeful discrimination." Id.

In the instant case, as previously discussed, Plaintiffs maintain that there are triable issues of fact that preclude summary judgment as to the constitutionality of the Town's selection procedure. Specifically, Plaintiffs state that "whether the omissions were driven by religious animus, rather than carelessness, has been put in dispute by the Town's filings." (Pl. Reply Memo at 7). The Court disagrees. Based on the entire record in this case, there is no evidence that Sofia, Wagoner, or Fiannaca intentionally excluded non-Christians from giving prayers at Town Board meetings. Nor can any reasonable inference be drawn that Sofia, Wagoner, or Fiannaca singled-out non-Christian religious groups for such exclusion.

Plaintiffs insist that "there is credible evidence that Sofia, Wagoner, and Fiannaca each used multiple resources to compile the official prayer-giver lists, yet consistently and purposefully excluded the minority faiths in those resources." (Pl. Reply Memo [# 43] at 11) (emphasis added). That is incorrect. The record indicates that Sofia called all religious organizations listed in the version of the Community Guide that she used, which is not in evidence, and that she compiled a list of all persons who agreed to give prayers. Therefore, the fact that Sofia's list does not include certain groups does not mean that she excluded them. As for Wagoner, she used Sofia's list and probably the Community Guide as well. Wagoner indicates that she called all of the organizations on the lists that she used, and never excluded anyone based on their religion. Although there were groups listed in the Community Guide which did not give prayers during Wagoner's tenure, there is no proof that they were not asked. Moreover, the vast majority of such groups which did not give prayers were Christian. As for Fiannaca, she used the lists provided to her by Wagoner, which she updated periodically using the Greece Post, a weekly newspaper. Fiannaca randomly called groups on those lists, and never intentionally excluded any group. Moreover, Fiannaca believes that she called everyone on her list at one time or another. Although Fiannaca's cumulative lists did not include some groups that appeared in either the 2006 Community Guide, or the undated version of the Greece Post that is contained in the record, the majority of those groups were Christian. Moreover, neither Sofia, Wagoner, or Fiannaca ever attended a Town Board meeting, and there is no evidence that any of them holds a particular religious belief. In sum, there is no evidentiary proof in admissible form that Sofia, Wagoner, or Fiannaca intentionally excluded non-Christian faiths from offering prayers. To the contrary, the record establishes that Sofia, Wagoner, and Fiannaca were merely attempting to complete a routine task in an efficient manner.36 Consequently, the Court finds that the selection procedures utilized did not violate the Establishment Clause.

Moreover, even assuming arguendo that Plaintiffs had established a triable of issue of fact as to whether Sofia, Wagoner, and/or Fiannaca excluded non-Christian faiths based on an impermissible motive, they have not raised a triable issue of fact as to municipal liability. Plaintiffs have not identified any formal policy of the Town to exclude non-Christians from delivering prayers. Nor have Plaintiffs identified a specific action in that regard by a policy-making official. Nor have Plaintiffs alleged or shown that the Town was deliberately indifferent with regard to training or supervising Sofia, Wagoner, or Fiannaca. Consequently, it appears that Plaintiffs' method of establishing municipal liability would be to show "the existence of an unlawful practice by subordinate officials so permanent and well settled as to constitute a "custom or usage" and proof that this practice was so manifest or widespread as to imply the constructive acquiescence of the policy-making officials."37 See, City of St. Louis v. Praprotnik, 485 U.S. at 127, 130, 108 S.Ct. 915, and Sorlucco v. New York City Police Dept., 971 F.2d at 871. However, Plaintiffs' papers do not expressly discuss or address how the Town is liable for the actions of the clerks, and do not allege a policy, practice, or custom, except in conclusory terms.

Moreover, in order to "constructively acquiesce" to a subordinate's unconstitutional conduct, senior policy-making officials must be aware of the conduct, and consciously choose to ignore it: "Another method of implicating a policymaking official through subordinates' conduct is to show that the policymaker was aware of a subordinate's unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions." Amnesty America v. Town of West Hartford, 361 F.3d at 126 (emphasis added, citation omitted); Rubio v. County of Suffolk, 328 Fed.Appx. 36, 38 (2d Cir.2009) ("Although in some cases a supervisor's acquiescence to actions of his subordinates may amount to a `custom' or `policy,' in such a case the subordinates' discriminatory practice must be so manifest as to imply the constructive acquiescence of senior policy-making officials.") (emphasis added); Sorlucco v. New York City Police Dept., 971 F.2d at 871 ("[B]efore the actions of subordinate city employees can give rise to § 1983 liability, their discriminatory practice must be so manifest as to imply the constructive acquiescence of senior policy-making officials.") (emphasis added); Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir. 2000) ("[A] municipal policymaker may be found to have caused subordinate officials' conduct by reason of the policymaker's acquiescence in a longstanding [unconstitutional] practice or custom which constitutes the `standard operating procedure' of the local governmental entity.") (citation omitted).

In this case, there is no evidence that policymaking Town officials were aware that non-Christian groups were allegedly being excluded. Although Plaintiffs insist that the Town of Greece is "a religiously diverse community,"38 they were not personally aware of any non-Christian religious groups in the Town of Greece.39 Moreover, even if various Town officials were aware of non-Christian religious groups, that does not mean that they were aware that Sofia, Wagoner, and Fiannaca were allegedly excluding them from giving prayers. In fact, there is no evidence of such an awareness by Town officials.

Alternatively, Plaintiffs contend that the Town received notice of the alleged "systematic exclusion" when Plaintiffs complained to Town officials. However, when Galloway and Stephens met with Town officials to complain about the prayer practice, they complained about prayer at meetings generally, and more specifically, about the sectarian nature of the prayers. Galloway Dep. at 49-50; Stephens Dep. at 52; Galloway Decl. dated Jan. 16, 2009, ¶ 15.40 There is no indication that Plaintiffs complained that non-Christian religions were being excluded from delivering prayers. See, id.; see also, Firkins Dep. at 259-260 (Plaintiffs complained about prayer at Board meetings); McCann Dep. at 27-28 (Plaintiffs complained about prayer generally at Board meetings). Nevertheless, shortly after that meeting, news of Plaintiffs' complaints caused individuals from minority faiths to volunteer to give prayers, and the Town permitted them to do so.41

Since Plaintiffs have not come forward with evidence that the Town excluded non-Christians for impermissible reasons, the Town is entitled to summary judgment on Plaintiffs' claim that the Town's selection procedures violated the Establishment Clause.

Sectarian Nature of the Prayers

Plaintiffs maintain that the Town violated the Establishment Clause by permitting individuals to deliver "sectarian" prayers at Board Meetings. Plaintiffs state, in that regard, that, pursuant to Marsh and Allegheny, sectarian legislative prayers violate the Establishment Clause per se, since they necessarily exploit the prayer opportunity and affiliate the government with a specific faith. Plaintiffs contend that the Town must instruct potential prayer-givers that prayers must be inclusive and nonsectarian. Defendants, on the other hand, contend that courts have no reason to parse the content of prayers, unless it has been shown that the legislative prayers were exploited to proselytize or disparage another faith. Defendants further state that there was no such exploitation in this case.

Any analysis of the constitutionality of legislative prayer necessarily begins with the Supreme Court's decision in Marsh, which involved a challenge to the Nebraska state legislature's practice of having the same Presbyterian minister, Reverend Palmer ("Palmer"), deliver prayers "in the Judeo-Christian tradition" at the start of each legislative session over a period of sixteen years. Marsh, 103 S.Ct. at 3337. The Court reviewed the long "unique history" of legislative prayer in the United States, and particularly in the United States Congress, and concluded that in general, 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 3335-36 (citations omitted). In that regard, the Court wrote:

Id. at 3333-35 (footnotes omitted). The Court further stated:

Id. at 3336 (emphasis added).42 Consequently, it is clear that legislative prayer does not, in and of itself, violate the Establishment Clause.

The Supreme Court in Marsh then turned its attention to whether "any [particular] features of the Nebraska practice" violated the Establishment Clause. Specifically, the court looked at three points: "first, that a clergyman of only one denomination-Presbyterian-has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo-Christian tradition." Id. at 3336-37. The Court found that, "[w]eighed against the historical background, these factors do not serve to invalidate Nebraska's practice." Id. at 3337. Significantly, in describing the prayers as being "in the Judeo-Christian tradition," the court included a footnote, stating: "Palmer [the chaplain] characterizes his prayers as "nonsectarian," "Judeo Christian," and with "elements of the American civil religion." Although some of his earlier prayers were often explicitly Christian, Palmer removed all references to Christ after a 198043 complaint from a Jewish legislator." Id. at 3337, n. 14. However, the Court did not indicate that Palmer's prayers were constitutional because they omitted all references to Christ. Nor did the majority indicate that it agreed with Palmer's characterization of his prayers as "nonsectarian."44 Instead, the Court stated:

Id. at 3337-38. Significantly in this regard, the Court found that Palmer had not exploited, proselytized, or advanced any one faith, even though, as noted in footnote 40 of this Decision and Order, he had delivered "prayers [that] were often explicitly Christian" over a period of fifteen years. Id. at 3337, n. 14.

Six years later, in Allegheny, the Supreme Court considered a challenge by the ACLU to the constitutionality of two holiday displays, consisting of a Christian creche and a Jewish menorah, respectively, located on government property. The Court summarized its Establishment Clause holdings as follows:

Allegheny, 492 U.S. at 591, 109 S.Ct. at 3099-3100 (citations and internal quotation marks omitted); see also, id., 109 S.Ct. at 3101 ("Whether the key word is `endorsement,' `favoritism,' or `promotion,' the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from making adherence to a religion relevant in any way to a person's standing in the political community.") (citation and internal quotation marks omitted); id. at 3105 ("[T]he Establishment Clause does not limit only the religious content of the government's own communications. It also prohibits the government's support and promotion of religious communications by religious organizations.").

The Court in Allegheny determined that the creche display violated the Establishment Clause, and that the menorah did not.45 In that regard, the Court found that the creche "endorse[d] Christian doctrine." Id. at 3105. On the other hand, the Court found that the menorah display did not violate the Establishment Clause, even though the menorah is a sectarian religious symbol, because it was displayed along with a Christmas tree and a sign saluting "liberty." Id. at 3113-16 (plurality) (Stating that "[t]he Christmas tree, unlike the menorah, is not itself a religious symbol.").46

As part of the majority's explanation, the Court discussed the dissenting opinion of Justice Kennedy, who argued that the creche display was acceptable, pursuant to Marsh. In rejecting that argument, the Allegheny majority stated, in pertinent part:

Id., 109 S.Ct. at 3106.47 This statement from Allegheny is the primary support for Plaintiffs' contention that all legislative prayer must be non-sectarian.

Subsequently, the Supreme Court conducted another Establishment Clause analysis, in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) ("Lee"). In pertinent part, Lee involved a public middle school graduation ceremony, at which a clergyman delivered an invocation prayer. Prior to the graduation, the school principal gave the invited rabbi a pamphlet entitled `Guidelines for Civic Occasions,' prepared by the National Conference of Christians and Jews, which "recommended that public prayers at nonsectarian civic ceremonies by composed with `inclusiveness and sensitivity.'" Id., 112 S.Ct. at 2652. Additionally, the school principal told the rabbi that "the invocation and benediction should be nonsectarian." Id. The Court found that the principal's attempt to instruct the rabbi on the content of his prayer was improper, stating that, "[t]hrough these means the principal directed and controlled the content of the prayers." Id. at 2656. The Court further stated:

Id. at 2656-57; see also, id. at 2658 ("A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed."). Additionally, the Court held that the school's practice of including prayer at graduation was coercive and unconstitutional. In that regard, the Court explained that its determination was not inconsistent with Marsh:

Id. at 2660.

The foregoing Supreme Court cases establish several principles. First, legislative prayer is acceptable in general, provided that the prayer opportunity is not exploited to proselytize or advance any one, or to disparage any other, faith or belief. Second, unless the prayer opportunity has been so exploited, courts should not "parse" the content of a particular prayer. Third, prayers in the Judeo-Christian tradition are acceptable, although legislative prayers that have the effect of affiliating the government with any one specific faith or belief are improper. Finally, the government may not compose official prayers or dictate the content of prayers.

Since Marsh was decided, several circuit courts and district courts have issued opinions concerning legislative prayer. A number of these cases have specifically considered whether legislative prayer must be nonsectarian.

In Stein v. Plainwell Community Schs., 822 F.2d 1406 (6th Cir.1987) ("Stein"), the Sixth Circuit considered the constitutionality of invocational prayers at high school commencement exercises. As part of its, discussion, the court referred to Marsh, as follows:

Id. at 1408-1409. Respectfully, though, this description of Marsh does not appear to be entirely accurate, as shown by the discussion above and by a review of the Marsh decision itself. Most notably, the Marsh court did not indicate that legislative invocations had to be nonsectarian. Nor did the court state that invocations must "not go beyond `the American civil religion.'" To the contrary, the only reference to American civil religion in the Marsh decision is in a footnote, setting forth Palmer's own description of his prayers, not the Court's. Nor did the Court in Marsh refer to legislative prayers as being "civil or secularized invocations."

In Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir.1998), cert. den. 526 U.S. 1039, 119 S.Ct. 1334, 143 L.Ed.2d 499 (1999), the Tenth Circuit upheld a city council's decision to prevent a private citizen from offering a "prayer" at a meeting, where the "prayer" was really a sarcastic commentary directed against legislative prayer.48 In pertinent part, the Tenth Circuit stated that under Marsh,

Id., 159 F.3d at 1234. In that regard, the court further explained:

Id., n. 10 (emphasis added). The circuit court noted that legislative prayer may "often" contain Judeo-Christian references:

The genre approved in Marsh is a kind of ecumenical activity that seeks to bind peoples of varying faiths together in a common purpose. That genre, although often taking the form of invocations that reflect a Judeo-Christian ethic, typically involves nonsectarian requests for wisdom and solemnity, as well as calls for divine blessing on the work of the legislative body.

Id. at 1234 (emphasis added). The Tenth Circuit held that the city council had properly rejected the appellant's request, since his proposed prayer "aggressively proselytizes for his particular religious views and strongly disparages other religious views." Id. at 1235 ("Snyder's claim must fail as a matter of law because his proposed prayer falls well outside the genre of legislative prayers that the Supreme Court approved in Marsh [.] ... Snyder's prayer aggressively proselytizes for his particular religious views and strongly disparages other religious views.").

In Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., 52 Fed.Appx. 355 (9th Cir.2002) ("Bacus"), the Ninth Circuit considered the constitutionality of a school board's practice of beginning public meetings with prayer. The "same individual almost always offered the invocation, always `in the name of Jesus,' and no individuals of other religions ever gave the invocation." Id., 52 Fed.Appx. at 356-57.49 The court found that such prayers "did not disparage other religious faiths, and did not proselytize." Id. Nevertheless, the court found that such prayers violated the Establishment Clause, purportedly because they "advanced one faith, Christianity, providing it with a special endorsed and privileged status in the school board." Id.

In Wynne v. Town of Great Falls, S.C., 376 F.3d 292 (4th Cir.2004) ("Wynne"), the Fourth Circuit considered the constitutionality of a town council's practice of beginning monthly meetings with prayer: Where a member of the council, and often the same member, led the prayer; where the Mayor and council members were all Christians; and where the prayers "`frequently refer[red] to Jesus, Jesus Christ, Christ or Savior.'" Id., 376 F.3d at 294. The court discussed Marsh and Allegheny, and stated, in pertinent part, "that while Marsh may have found that history can affect the constitutionality of nonsectarian references to religion by the government, the Court [did not hold] that history can legitimate practices that demonstrate the government's allegiance to a particular sect or creed." Id. at 297 (emphasis in original, citation omitted). The court found that under the facts described above, the town council had "improperly `exploited' a prayer opportunity to advance one religion over others." Id. at 298. On this point, the court further stated:

Id. at 298.51

The Fourth Circuit again considered a challenge to legislative prayer in Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276 (4th Cir.2005) ("Simpson"). In Simpson, a county board of supervisors adopted a policy that "invocation[s] must be non-sectarian with elements of the American civil religion and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief." Id., 404 F.3d at 278. The county invited leaders of various religions to offer such nonsectarian prayers, and in that regard, the court stated:

Id. at 279 (citation and internal quotation marks omitted). The plaintiff-appellant, Simpson, a self-described witch, alleged that the county's policy violated the Establishment Clause. The basis of her complaint was that she asked to be added to the list of invited clergy, but the county denied her request to be added to the list of clergy, telling her that invocations were limited those "traditionally made to a divinity that is consistent with the Judeo-Christian tradition." Id. at 280. The court summarized Marsh as standing for the idea that "non-sectarian legislative prayer generally does not violate the Establishment Clause." Id. at 282 (citation omitted). Purportedly applying that principle, the court stated that the use of the name Christ was improper, but that the following terms were permissible: "Lord God, our creator"; "giver and sustainer of life"; "the God of Abraham, Isaac and Jacob"; "Heavenly Father"; "Lord our Governor"; and "Lord of Lords, King of Kings, creator of planet Earth and the universe and our own creator." Id. at 284.

In Hinrichs v. Bosma, 440 F.3d 393 (7th Cir.2006) ("Hinrichs"), the Seventh Circuit considered an Establishment Clause challenge to the Indiana House of Representative's "practice of opening its proceedings with overtly sectarian prayer, usually Christian." Id., 440 F.3d at 394.52 The appellant was seeking a stay, pending appeal, of a district court's ruling, which found that the aforementioned policy was unconstitutional, and which permanently enjoined such prayer. See, id. at 402 ("The injunction permits prayer so long as it is of a nondenominational nature and does not use Christ's name or title or any other denominational appeal.") (citation omitted). The court began by indicating that Marsh, and the cases applying Marsh, generally approved only nonsectarian legislative prayer. Id. at 399 (citing, inter alia, Allegheny); see also, id. at 401 ("These cases appear to teach the rule that non-sectarian legislative prayer is constitutionally sound, but sectarian appeals, including those of an overtly Christian nature, are not.") (citations omitted). In that regard, the court rejected the idea that "prohibiting clerics from invoking Christ would violate the Free Exercise or Free Speech Clauses of the First Amendment." Id. at 402. Consequently, the majority agreed with the district court and denied the stay. Id. at 403. One justice dissented, stating that, "[w]hile there is caselaw supporting the proposition that Marsh approves of only nonsectarian legislative prayer, there still remain powerful arguments to the contrary, not the least of which is the Marsh majority's curious ambiguity on the point." Id. at 403. Subsequently, the Seventh Circuit reversed its decision, reversed the district court, and remanded the case with instructions to dismiss for lack of subject matter jurisdiction.53

In Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir.2006), the Fifth Circuit was faced with an Establishment Clause challenge to a school board's practice of beginning its meetings with prayer. Prayers were offered by board members, school administrators, teachers, students, and clergy, and the sample prayers in the record each "contained a reference to `Jesus Christ' or `God' and `Lord.'" Id., 473 F.3d at 192. The district court permanently enjoined the school board from opening its meetings with any prayer. Id., 473 F.3d at 193. On appeal, two circuit court panel members found the aforementioned prayer policy unconstitutional and affirmed the injunction in part, though for different reasons, and the third member voted to find that the prayer policy did not violate Marsh. More specifically, Judge Barksdale found that the prayers violated Marsh54 because they were sectarian, and therefore advanced Christianity. See, id. at 203, n. 2 ("[T]he impermissible advancement of a particular religion is grounded in the Board's refusal to adopt a nonsectarian policy, the prayers' uniformly Christian tenor, and their overtly sectarian, proselytizing references."). Judge Barksdale further faulted the school board for selecting only prayer-givers "who would advance the Christian faith" and for not adopting a non-sectarian prayer policy after the lawsuit was filed. Id. at 204. In a concurring opinion, Judge Stewart voted to uphold the injunction, finding that the prayer policy was unconstitutional under Lemon. Finally, Judge Clement filed a dissenting opinion, finding that the challenged policy did not violate Marsh, since the plaintiff-appellee "failed to demonstrate that the Board exploited the prayer opportunity either to proselytize or advance any one, or to disparage any other, faith or belief." Id. at 211 (citation and internal quotation marks omitted). On this point, Judge Clement observed:

Id. at 212-213. Judge Clement further found that the plaintiff had not offered proof that the school board had excluded non-Christian faiths from participating in prayers. Id. at 215. In that regard, Judge Clement noted that the school board had indicated its "willingness to allow any viewpoint to be heard at the meetings." Id.

In any event, following a rehearing en banc, the Fifth Circuit reversed its earlier decision, vacated the district court's judgment, and remanded the case with instructions to dismiss it for lack of standing. Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494 (5th Cir.2007) (en banc). The school board then adopted a new prayer policy, authorizing the board "to invite and host a rotating roster of Parish clergy to deliver prayers."55 The board also drafted a form letter to use when inviting clergy, which stated, in relevant part: "To maintain a spirit of respect and ecumenism, the Board requests only that the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocation speaker, nor to disparage any faith or belief different than that of the invocation speaker."56 The policy did not expressly prohibit sectarian prayer or recommend that clergy refrain from using sectarian language. Following the adoption of this policy, a number of invited clergy offered prayers that contained references to Jesus Christ.57 Subsequently, the Doe Plaintiff re-filed his lawsuit, and established his standing to challenge the school board's policy. In Doe v. Tangipahoa Parish Sch. Bd., 631 F.Supp.2d 823 (E.D.La.2009) ("Doe II"), the district court considered cross-motions for summary judgment on the Establishment Clause claims. The district court set forth its interpretation of Marsh, in pertinent part, as follows:

Id. at 839-840 (citations omitted). Nevertheless, the district court found that there were triable issues of fact as to whether the school board had exploited the prayer opportunity to advance Christianity. Id. at 840. For example, there was some evidence suggesting that the person responsible for inviting clergy had favored Christian clergy over non-Christian clergy, as well as some evidence that board members viewed the invocations as being limited to Christian prayer. Id.

In Turner v. City Council of the City of Fredericksburg, Virginia, 534 F.3d 352 (4th Cir.2008), cert. den., ___ U.S. ___, 129 S.Ct. 909, 173 L.Ed.2d 109 (2009), the Fourth Circuit addressed a challenge to a city council's policy "requiring that legislative prayers be nondenominational." Id., 534 F.3d at 353. In that case, the council's prayers were offered only by elected council members, on a rotating basis. Id. The plaintiff-appellant, Turner, a minister and elected member of the council, argued that the council's policy violated his First Amendment rights, because his "religious beliefs require[d] him to close his prayers in the name of Jesus Christ." Id. at 354. Turner alleged that the Supreme Court's decision in Lee prohibited the town council from dictating the content of prayers, but the court disagreed: "We do not read Lee as holding that a government cannot require legislative prayers to be nonsectarian. Instead, Lee established that government cannot compel students to participate in a religious exercise as part of a school program." Id. at 355. The court's opinion, authored by retired Supreme Court Justice O'Connor, further stated:

Id. at 356 (emphasis added; citations omitted). Significantly, the circuit court did not state that legislative prayer must be nonsectarian. This fact is significant because the district court below had expressly held that such prayer must be nonsectarian. See, Turner v. City Council of the City of Fredericksburg, Virginia, Civil Action No. 3:06CV23, 2006 WL 2375715 at *3-4 (E.D.Va. Aug. 14, 2006) ("The Supreme Court and this circuit require that legislative prayer be nonsectarian."). Rather than affirming the district court's decision on that basis, the circuit court affirmed for reason stated above. Accordingly, the circuit court's decision appears to be a retreat from its earlier ruling in Simpson. Significantly, the circuit court's statement that it "need not decide whether the Establishment Clause compel[s]" a nonsectarian prayer policy clearly indicates that the issue is unsettled in the Fourth Circuit. (emphasis added).

Subsequently, in Pelphrey, as already discussed above, the Eleventh Circuit considered an Establishment Clause challenge to the policies of two county commissions, under which clergy from various religious denominations were invited to give legislative prayers at meetings. Despite the county's policy of inviting a variety of clergy, the great majority of the clergy were Christian. Id., 547 F.3d at 1267. The county did "not compose or censor the prayers," and the prayers actually given "included references to `Jesus,' `Allah,' `God of Abraham, Isaac, and Jacob,' `Mohammed,' and `Heavenly Father.'" Id., 547 F.3d at 1266-67. The plaintiffs-appellants "argue[d] that the Establishment Clause permits only nonsectarian prayers for the meetings," but the circuit court disagreed since the defendants had not exploited the prayer opportunity, and since "[w]hether invocations of `Lord of Lords' or `the God of Abraham, Isaac, and Mohammed' are `sectarian' is best left to theologians, not courts of law." Id. at 1266-67. With respect to this issue, the court stated, in pertinent part:

Counsel had difficulty applying either standard to various religious expressions. When asked, for example, whether "King of kings" was sectarian, he replied, "King of kings may be a tough one.... It is arguably a reference to one God .... I think it is safe to conclude that it might not be sectarian."

Id. at 1271-72. The court also summarized the various decisions of the courts of appeal interpreting Marsh, and concluded that they do not require legislative prayer to be nonsectarian:

Id. at 1272-74.

Thus rejecting the notion that legislative prayer must be nonsectarian, the Eleventh Circuit proceeded to consider whether the prayer practice at issue in Pelphrey violated the Establishment Clause. In that regard, the court considered three factors: "the identity of the invocational speakers, the selection procedures employed, and the nature of the prayers." Pelphrey, 547 F.3d at 1277. As for the first factor, the court observed that although the invited clergy were "predominantly" Christian, "prayers were also offered by members of the Jewish, Unitarian, and Muslim faiths." Id. The court found that this factor did not support an Establishment Clause violation, since the practice was more inclusive of different religious faiths than that approved in Marsh. As for the second factor, the nature of the prayers, the court stated that the prayers

Id. at 1278. On this point, the court found that "[t]he diversity of the religious expressions, in contrast with the prayers in the Judeo-Christian tradition allowed in Marsh, supports the finding that the prayers, taken as a whole, did not advance any particular faith." Id.

And, with regard to the third factor, the selection process employed, the court, as already discussed, found that the procedures employed by one of the county boards, "the County Commission," were not motivated by an improper motive. Id. at 1278. As to this finding, the record indicated that the county employee responsible for inviting clergy to County Commission meetings "compiled the list of potential speakers from various sources and included diverse religious institutions, including a mosque and three synagogues," and "did not exclude religious institutions based on their beliefs." Id. Based upon its analysis, the court concluded that the County Commission's policy did not violate the Establishment Clause.60 On the other hand, the court conceded that there was an issue of fact as to whether the procedures employed by the other county board, the Planning Commission, were tainted by an improper motive. As to the Planning Commission, there was evidence that the employee responsible for inviting clergy had intentionally excluded certain denominations from her list of potential clergy. Id., 547 F.3d at 1281-1282.

Following Pelphrey, two district court cases have considered the constitutionality of legislative prayer practices: Joyner v. Forsyth County, N.C., No. 1:07CV243, 2009 WL 3787754 (M.D.N.C. Nov. 9, 2009) ("Joyner") and Doe v. Indian River Sch. Dist., 685 F.Supp.2d 524 (D.Del.2010) ("Indian River"). In Joyner, the plaintiffs alleged that a county board of commissioners violated the Establishment Clause by "sponsoring and allowing sectarian prayer" at meetings. Joyner, 2009 WL 3787754 at *1. The prayers were given by invited local clergy. Initially, the county had no prayer policy, but it adopted one after the plaintiffs sued. The newly-adopted policy indicated that invited clergy could offer an invocation "according to the dictates of [his or her] conscience," provided that "the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocational speaker, [or] to disparage any [other faith]," so as to maintain a "spirit of respect and ecumenism." Id. at *2. Prayers at board meetings "frequently contained at least one reference to Jesus, Jesus Christ, Christ Savior, or the Trinity." Id. at *3. None of the prayers in the court's record "invoked a deity associated with any specific faith other than Christianity." Id. The court, interpreting and applying Fourth Circuit law, concluded that there was a "nonsectarian maxim," forbidding sectarian prayer. Id. at *6-7. The court further found that

Id. at *7 (emphasis added; citations and internal quotation marks omitted). Applying this standard, the court found that the challenged prayers violated the Establishment Clause, because they contained frequent references to Jesus, which prevented them from qualifying as "nonsectarian or civil prayer," and therefore had the effect of promoting Christianity and affiliating the board with "a specific faith or belief." Id.; see also, id. at *8 ("[P]rayers given under Defendant's policy do not reflect... diversity.").

In Indian River, the district court considered an Establishment Clause challenge to a school board's policy of "opening its public meetings with a prayer or moment of silence." Id., 685 F.Supp.2d at 526. Board members were selected, on a rotating basis, to either offer a prayer or a moment of silence at the beginning of each meeting, in accordance "with the freedom of conscience of the individual adult Board member." Id. at 529. The board's policy stated that the prayer "shall not be used or exploited to proselytize, advance or convert anyone, or to derogate or otherwise disparage any particular faith or belief," and further provided:

Id. Pursuant to this policy, some board members gave explicitly Christian prayers, while some members quoted historical figures such as George Washington, Ghandi, and Mark Twain, and others observed a moment of silence. Id. at 530. The court, interpreting and applying Marsh and its progeny, held that the sectarian nature of many of the prayers did not render them unconstitutional. Id. at 541 ("[T]he Court concludes that the fact that Board Members often reference Jesus Christ in their prayers does not render the Board's Pray Policy unconstitutional under Marsh."); see also, id. at 542 ("If the Court were to accept Plaintiffs' view, a reference to a particular deity in any prayer offered in a legislative or deliberative body would automatically render the practice unconstitutional. This conclusion cannot be squared with the reasoning in Marsh."). The court continued:

Id. at 542-43 (footnotes omitted). The court further found that the school board's policy had not been used to proselytize or advance Christianity. Id. at 543-44 ("[T]he record before the Court demonstrates that, at most, certain Board Members briefly refer to Jesus Christ by name in concluding their prayers. The Court does not agree that these references, by themselves, constitute `proselytizing' or the `advancement' of religion.") (footnote omitted). Consequently, the court found that the school board's policy did not violate the Establishment Clause.

In the instant case, the Court is of course bound by the decisions of the Supreme Court. However, no Supreme Court decision has addressed the precise issues and factual circumstances that are before this Court. Additionally, the Court is not aware of any binding Second Circuit authority that is on point, and the circuit courts which have issued decisions concerning legislative prayer are divided. Nevertheless, the circuit court and district court decisions discussed above are instructive, even though they are not binding on this Court.

It is clear that outcomes in Establishment Clause cases are extremely fact specific. See, e.g., Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 2868-69, 162 L.Ed.2d 607 (2005) ("[N]o exact formula can dictate a resolution to such fact-intensive cases.") (Breyer, concurring). Here, the Court has considered the particular facts of this case in light of all of the binding and non-binding authority discussed above, and finds that the Town's prayer policy does not violate the Establishment Clause. In making that determination, the Court has considered a number of factors in light of the entire record in this case. For example, at the outset, there is no indication that the Town established its unwritten policy of having prayer before meetings for an improper purpose. That is, the Town did not begin having prayer at meetings in order "to proselytize or advance any one, or to disparage any other, faith or belief." Instead, the record indicates that Auberger initiated the policy of having prayer at meetings because he wanted to continue the prayer tradition that he had observed while a member of the Monroe County Legislature.

The Town's prayer policy, to the extent that one exists, is to invite clergy from all denominations within the Town, without any guidance or restriction on the content of prayers. The Town will also permit anyone who volunteers to give an invocation, including atheists and members of non-Judeo-Christian religions such as Wicca, and has never denied a request by anyone to deliver a prayer. Town clerical employees, who have no stake in the process other than to perform the task assigned to them, have invited clergy from lists published by the Town Chamber of Commerce and local newspaper. The clerical employees indicate that they have endeavored to include all groups listed in those publications. The Town has no control over which religious groups are listed in those publications. Over time the clerical employees have compiled lists of clergy who have agreed to give invocations, and the lists do not reflect all of those who declined an invitation.

The groups listed in the Community Guide and Greece Post are overwhelmingly Christian, which reflects the fact that there are comparatively few non-Christian organizations in the Town. Plaintiffs maintain that the Town intentionally excluded non-Christian groups listed in those publications, but the record does not support such assertion. For example, the only purportedly non-Christian group listed in the Community Guide was the Church of Jesus Christ of Latter-Day Saints,62 and the reasonable inference from the record is that this group did not make it onto Sofia's list because it declined her invitation. Significantly, along with the Church of Jesus Christ of Latter-Day Saints, a number of Christian churches listed in the Community Guide were not included on Sofia's list. The only non-Christian group listed in the Greece Post, the Bahai Faith Community, was included on Fiannaca's list, and a representative of the Bahai community gave an invocation on December 16, 2008.

Plaintiffs maintain that the Town intentionally excluded three other minority faiths from giving invocations: A Jehovah's Witness congregation, a Vietnamese Buddhist congregation, and Jewish synagogues located outside the Town. Plaintiffs allege that the Town had constructive notice of the Jehovah's Witness group, because it once applied for a zoning permit. Plaintiffs further state that the Town had constructive notice of the Vietnamese Buddhist group, because a Town official was aware of the group's existence as a result of having driven by its temple. And finally, Plaintiff's insist that the Town had constructive notice of the synagogues, because Auberger was aware that there were synagogues located outside the Town.63 See, Pl. Memo in Opposition [#38] at 15 ("Town officials ... ignored anecdotal information about local minority-faith communities.") (emphasis added). The Court disagrees that these points create a reasonable inference that the Town excluded these faiths for religious reasons. Significantly, there is no evidence that Sofia, Wagoner, or Fiannaca was aware of these groups, which were not listed in the Community Guide or Greece Post. Plaintiffs argument in this regard seems disingenuous in any event, since even assuming that these supposedly "disfavored minority" groups had each delivered a prayer, Plaintiffs would no doubt still argue that the Town's selection procedure was unconstitutional, since the vast majority of invited clergy would still have been Christian.64 In that regard, the ACLU, writing on behalf of Plaintiffs, has already indicated that the Town should invite clergy from outside the Town to create an acceptable level of diversity. See, Footnote 39 above.

The Court has also considered the identities of the prayer-givers and the process that the Town employed in inviting clergy to deliver prayers, and finds that these factors did not have the purpose or effect of proselytizing or advancing any one, or disparaging any other, faith or belief, within the meaning of the Establishment Clause. As discussed above, houses of worship in the Town of Greece are overwhelmingly Christian. At their depositions, Plaintiffs could not identify a single non-Christian house of worship in the Town, despite having lived there for decades. Moreover, the sources that town used to identify and invite clergy to deliver prayers, consisting of the Community Guide and Greece Post, were almost exclusively made up of listings for Christian churches. Notably, there were no synagogues, mosques, or other non-Christian churches listed in either source, with the exception of the Bahai faith, and possibly the Church of Jesus Christ of Latter-Day Saints.65 And as the Court has already observed, there is no indication that Sofia, Wagoner, or Fiannaca intentionally excluded any non-Christian denomination. Moreover, a wide variety of Christian denominations were invited to deliver prayers, including Assemblies of God, Catholic, Presbyterian, Methodist, Lutheran, Pentecostal, and non-denominational. Additionally, town officials advised Plaintiffs that anyone, including an atheist, was welcome to offer an invocation. Furthermore, after Plaintiffs complained, representatives of the Jewish, Bahai, and Wicca faiths, volunteered to give invocations and were permitted to do so. The Town's willingness to rotate the prayer opportunity amongst various denominations, each with their own particular beliefs, belies any attempt to proselytize or advance any one, or to disparage any other, faith or belief.

Lastly, the Court has considered the nature of the prayers, and finds that they did not proselytize or advance any one, or disparage any other, faith or belief. It is undisputed that the vast majority of prayers at issue in this case were offered by Christian clergy, and that many of them contained at least one reference to Jesus Christ. On this point, as the Court noted earlier, many of the prayers end with the phrase, "in Jesus' name," or similar language. Otherwise, though, most of the prayers that Plaintiffs maintain are sectarian are indistinguishable from prayers that they say are non-sectarian. Some of the allegedly sectarian prayers contain no reference to Jesus or any other deity. None of the allegedly sectarian Christian prayers disparaged other religions or attempted to convert anyone.

Plaintiffs maintain that some of the prayers "have been aggressively proselytizing," but they neglect to include any citation to the record so it is unclear which prayers they mean. (Plaintiff's Reply Memo [#43] at 12).66 Nevertheless, the Court does not view any of the prayers in the record as being either aggressive or proselytizing. The mere fact that prayers may contain a reference to Jesus or another deity does not make them proselytizing. Instead, limited references such as, "in Jesus's name," are, under the facts of this case, "tolerable acknowledgment[s] of beliefs widely held among the people of this country." Marsh, 103 S.Ct. at 3336.

Plaintiffs maintain, however, that sectarian legislative prayers necessarily violate the Establishment Clause. In that regard, Plaintiffs contend that prayers may only refer to a "generic God," and must not refer to any particular deity or to any religious belief, such as the Holy Trinity, that is specific to a particular religion or group of religions. Plaintiff's further maintain that to prevent sectarian prayer, the Town must instruct potential prayer-givers to give inclusive ecumenical prayers. The Court disagrees.

It is clear to this Court that Marsh does not require that legislative prayer be non-sectarian. To the contrary, Marsh upheld the constitutionality of legislative prayer, thereby specifically carving out a unique exception to the Lemon test, based primarily if not exclusively on the long history of legislative prayer in Congress, which is often overtly sectarian.67 See, Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d at 213-213 (Clement, J., dissenting) ("The content of congressional prayer, referred to by the Marsh Court as exemplifying permissible legislative prayer, traditionally has included sectarian references. In addition, Congress continues to permit sectarian invocations, as it has since the practice's inception."). On this point, the Court takes judicial notice of just two recent prayers given at the beginning of sessions of the United States House of Representatives. On April 15, 2010, the Rev. Clyde Mighells, of Lighthouse Reformed Church, gave the opening prayer in the House, which ended with the words, "It is in the blessed name of our Lord, Jesus Christ, that we lay these requests at Your feet. Amen." 156 CONG. REC. H2581 (daily ed. April 15, 2010). And on June 30, 2010, the Rev. Robert Henderson, of First Baptist Church, Lincoln, Illinois, offered the opening prayer in the House, which ended with the words, "These things we pray in the name of our Lord Jesus Christ. Amen." 156 CONG. REC. H5205 (daily ed. June 30, 2010).68 These prayers are indistinguishable from some of those being challenged in this case, and according to Marsh, "it would be incongruous to interpret [the Establishment Clause] as imposing more stringent First Amendment limits on the States than the draftsmen imposed on the Federal Government." Marsh, 103 S.Ct. at 3335.

The Supreme Court's decision in Allegheny does not compel a contrary ruling. As already mentioned, the majority decision in Allegheny stated that, "The legislative prayers involved in Marsh did not violate [the Establishment Clause] because the particular chaplain had removed all references to Christ." Allegheny, 109 S.Ct. at 3106 (citation and internal quotation marks omitted). That statement is binding on this Court. Nevertheless, the statement does not indicate that legislative prayers must be nonsectarian. The facts of Marsh were, of course, that a single clergyman of a single Christian denomination had been the chaplain of the Nebraska legislature for sixteen years. Under those facts, the Supreme Court may have found it significant, in denying the Establishment Clause challenge, that the chaplain had deleted all references to Christ, albeit belatedly, because otherwise it might have appeared that Nebraska was advancing a particular faith. In this case, though, the facts are entirely different, since the Town has rotated the prayer opportunity amongst numerous clergy of a variety of denominations. Where, as here, a legislature permits a variety of clergy to give invocations, there is arguably less likelihood that the government could be viewed as advancing a particular religion, and therefore less concern over the sectarian nature of particular prayers. In any event, under Marsh, the issue is not whether the prayer is sectarian or non-sectarian, but whether, based on the totality of the circumstances, the prayer is being exploited to advance or disparage a belief, or to associate the government with a particular religion.

The Court also disagrees with Plaintiffs' contention that the Town must, or even can, instruct potential prayer-givers that prayers should be "inclusive and ecumenical."69 In Lee, the Supreme Court characterized the defendant school's similar instruction to an invited rabbi as an impermissible attempt by government to control the content of prayer. Lee, 112 S.Ct. at 2656; see also, id. at 2658 ("A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed."). The Court finds that the policy requested by Plaintiffs would violate Lee, since it would likewise impose a state-created orthodoxy. In this regard, the Court respectfully disagrees with the Fourth Circuit's decision in Turner.

Moreover, the Court finds that Plaintiff's proposed non-sectarian policy, which would require Town officials to differentiate between sectarian prayers and non-sectarian prayers, is vague and unworkable, as Pelphrey demonstrates. The instant case illustrates the illusory nature of so-called nonsectarian prayer, since as shown above, many of the prayers that Plaintiffs say are sectarian are indistinguishable from prayers that they say are not.

Considering all of these factors, and in light of the undisputed facts of this case, the Court finds as a matter of law that the Town did not violate the Establishment Clause.

CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment [#33] is granted, Plaintiffs' motion for summary judgment [# 32] is denied, and this action is dismissed.

SO ORDERED.