This is the 2nd post in my series on the US Supreme Court, please feel free to go back and review last weeks posting and of course I welcome feedback on how to improve the series and make it more helpful to the reader.
Today we will be taking a look at the Establishment Clause of the 1st Amendment and the issue of public prayer. As noted above the case name (should you wish to look elsewhere for more information) is Town of Greece v. Galloway. This one is already getting a lot of press coverage.
This case began in the community of Greece, New York (a small town in upstate New York near Rochester). For a number of years the town council had a practice of opening each session with a moment of silence, presumably allowing each person to offer (or not offer) whatever blessing they thought proper.
But in 1999 the policy was changed at the request of a town supervisor and they began to offer a formal prayer at the opening of each meeting of the council. Those chosen to give the prayers were selected from a list of local clergy which naturally favored Christians which meant that between 1999 and 2007 all of the prayers came from Christians.
It is worth noting that there was not really any intent by the council to discriminate against other faiths, it is simply the fact that most of the local clergy were Christian.
In 2008 two local residents (one Jewish and one atheist) objected to the practice alleging that by having a member of the clergy give a prayer that they were in effect aligning the local government with a particular religion in violation of the 1st amendment ban on establishment of religion.
While the case was pending the council tried to reach out to other faiths and for a time several non Christians gave prayers but by 2009 it had reverted to Christians only (again not so much out of a desire to block others than a lack of others)
The case made its way up the courts to the 2nd Circuit Court Of Appeals which struck down the practice but made it clear that they were not ruling against any form of prayer or invocation at public meetings.
Instead the court stated that:
“a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion, violates the clear command of the [First Amendment's] Establishment Clause.”
In this particular case because the prayers focused almost exclusively on Christian beliefs that it gave the impression the council was endorsing said beliefs and further that the council made no effort to dispute that impression.
The case was appealed to the US Supreme Court and it was argued before the court on November 6th.
This case is obviously going to attract a good deal of public attention and while may not have as direct impact on the average day to day practice it may serve as a guide to the continuing direction of the court.
As you might imagine a number of amicus briefs have been filed in this case on both sides of the argument. This includes several local municipalities who have similar practices and thus have a stake of sorts in the outcome.
The last time the court ruled on the issue of public prayer was in 1983 so none of the current Justices were serving.
That case was Marsh v. Chambers (1983) 463 US 783, 103 S. Ct 3330.
In Marsh the court voted 6-3 to uphold a practice in the Nebraska legislature of praying at the opening of each legislative session. However it did so based on what the court called “the unique history” of the United States.
Specifically the fact that there had been a tradition of opening legislative sessions with a prayer going back to the days of the founders and that the same men who passed the Bill of Rights also opened sessions of Congress with a prayer.
Several justices dissented in that case stating that the practice would not have passed any of the traditional tests applied to the Establishment Clause and that it was not proper to carve out an exception.
Under the standard tests in order for a law to satisfy the Establishment Clause it must meet 3 conditions:
First, the statute [at issue] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion
It will be interesting here to see which way the court goes on this case. Based on the Marsh case it would seem that the Circuit court got the case wrong since the town council is basically a legislative body.
On the other hand it does seem clear that if you apply the standard tests under the Establishment Clause (as the 2nd circuit seemed to do) that the practice of the town council does violate the establishment clause.
One could assume we will have the standard 4-4 split with the decision resting with what many call or “one man Supreme Court” in the form of Justice Kennedy but as past rulings have shown this 4/4 division does not always occur.
If such a split occurs I would expect Kennedy to vote to reverse the 2nd and uphold the practice based on the Marsh standard.
Although Marsh was the last direct ruling on the issue of public prayer the court did touch on the issue in the 1989 case of County Of Allegany v. ACLU 492 US 573 when they ruled on a Nativity scene being displayed in a county courthouse
In that case 5 justices voted to find the display of the nativity a violation of the Establishment Clause but Justice Kennedy did not, relying on Marsh to argue that if invocation prayers are allowed then so are religious displays. Since he followed Marsh in that case I would guess he would do so in this case.
Presuming a 4-4 and Kennedy split does not occur then I would assume that one of the liberal justices would choose to follow Marsh rather than one of the conservatives voting to reverse (though you can never be sure of Roberts)