Yet, as Justice Elena Kagan emphasized in a persuasive dissent, determining whether a particular prayer program violates the First Amendment is a fact-specific exercise, and there are important distinctions between the practice in the Nebraska case and the practice in the New York town. Kagan said a town-hall meeting "need not become a religion-free zone," and that "legislative prayer has a distinctive constitutional warrant by virtue of tradition," dating back to the first session of Congress. But she said the practice in the town of Greece does not fit that tradition, for starters, because, unlike the Nebraska case, which involved an audience of elected legislators, the town hall meetings involved ordinary citizens, some there to petition their local government for permits, zoning variances and other individualized matters.
It is a situation that requires "special care," as Kagan put it, to make sure the prayers that the citizens hear "seek to include, rather than serve to divide" and reinforce that citizens of all faiths are equal participants in government. The town board ignored that need by never reaching out and arranging for non-Christians to offer the invocation, except in a few instances around the time the lawsuit was filed. Nearly all the prayers at the Greece town meetings contained purely Christian references (as in, "We acknowledge the saving sacrifice of Jesus Christ on the cross"). By contrast, the chaplain in the Nebraska case, a Presbyterian minister, refrained from making references to Jesus Christ after a legislator complained.
Kennedy cited the town board's purported policy of being open to having prayers delivered by ministers or laymen of other faiths, but that policy was never publicized. Nor was it made clear at meetings that town residents need not participate in the prayer. It was disappointing that the Justice Department urged the justices to uphold the prayer practice in the town hall meetings, which skirted the constitutional principle of religious neutrality and caused some residents to feel like outsiders.