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Nov 08 2013

Fascinating Oral Argument in Government Prayer Case

The Supreme Court heard oral argument in Town of Greece v Holloway on Wednesday morning, the case involving the question of local elected boards beginning their meetings with prayers. The key precedent here is Marsh v Chambers, which upheld the practice of opening state legislative sessions with prayer. Lyle Denniston reports on what happened at the hearing.

The town’s lawyer, Washington attorney Thomas G. Hungar, opened by complaining that a federal appeals court had stretched the Marsh precedent out of shape. Hungar’s legal briefs had made clear that the town’s legal strategy is really dependent upon Marsh’s continuing force.

He had uttered only a few words before Justice Elena Kagan — in a question that actually would represent the hypothetical kind that would dominate the whole session — wondered about the constitutionality if the Supreme Court were to have opened this session with a practice very much like that routinely carried out by the Greece Town Board, complete with direct summonses to a Christian God and to Jesus Christ.

Hungar’s answer was that he didn’t think that would be permissible. A moment later, Justice Kennedy somewhat impatiently asked why Hungar had conceded the point so quickly. Why would it violate the Constitution, Kennedy asked. The lawyer said there was no comparable history for such a ritual at the Court.

Is the practice at issue in Marsh “just a historical aberration?” Kennedy asked in a quick follow-up. “What’s the source of the distinction?” Chief Justice John G. Roberts, Jr., soon asked how far the historical argument would extend, and how the Court would know when to use that as the test. Other Justices then added new queries about using historical analysis.

And, just a few minutes later, Kennedy suggested that he was not impressed with an argument that “we’ve always done it,” that the argument about government prayer “begins and ends” with whether it was validated by history alone.

This is very, very interesting. Kennedy and Kagan seem to be recognizing the inconsistency of upholding a practice as constitutional only because it’s always been done. The court has offered rulings of that nature many times, particularly when it upholds a longstanding practice as an exercise in “ceremonial deism.” Justice Brennan first used this term in Lynch v Donnelly, a nativity scene case, in 1984:

…I would suggest that such practices as the designation of “In God We Trust” as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow’s apt phrase, as a form a “ceremonial deism,” protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content

Justice O’Connor cited it again in Elk Grove Unified School District v Newdow:

There are no de minimis violations of the Constitution – no constitutional harms so slight that the courts are obliged to ignore them. Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as “The Star-Spangled Banner”, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.

But such ad hoc exceptions force the court to be inconsistent, if not incoherent, in its Establishment Clause jurisprudence. And it sounds like Kennedy and Kagan, at least, are recognizing that. Scalia has recognized it in the past as well and criticized his fellow justices for it, but he would replace that inconsistency with a blanket rule that the government can endorse Christianity in any way it wishes as long as it does not actually coerce anyone into believing or attending church. And that’s the key question:

By that point, it was strongly tempting to conclude that the Marsh approach was not going to be the judge of the Greece citizen prayers. But, if not, to what would the Court then turn? As the Justices quickly discovered, from their own questions from then on, just asking for an alternative is far different from defining one.

With Justice Stephen G. Breyer trying to lead the Court toward some rational list of what can or cannot be done with government praying, it seemed that every one of the Justices taking part in the exchanges had some variant they wanted to try out.

The Court has sometimes judged church-government issues by whether a policy or practice amounted to an endorsement of religion, and has sometimes used the test of whether government was trying to “coerce” someone into embracing a government-approved faith. And the Justices considered both of those tests, in varying formulations, but it was not evident that a consensus was looming.

And therein lies the incoherence of the court’s Establishment Clause precedents. Sometimes they apply the Lemon test, sometimes the endorsement test, sometimes the coercion test, sometimes no test at all. And when it comes to legislative prayer, the courts have often drawn a very thin line between prayer that is “sectarian” (if it refers to Jesus Christ rather than to God, for example), but that quickly leads to even more incoherence.

When one of the nation’s leading experts on the law and history of religion, University of Virginia law professor Douglas Laycock, went to the lectern to challenge the Town Board’s prayer practice, he seemed to get immediately into trouble with his core argument that the people who show up at board meetings because they have business with the town officials would be “coerced” into going along with prayers even over their personal objection, so as not to offend the officials from whom they were seeking action.

Justice Samuel A. Alito, Jr., interpreted Laycock’s argument — in an exaggeration — as an argument against any prayers at all in the local government setting. When the professor said he was only seeking to ensure that any such prayers not be “sectarian,” Alito challenged him to recite a prayer that would be acceptable to people of all faiths.

Laycock suggested that a prayer might legally include an appeal to “the Almighty” or “the Creator,” but that only prompted Justice Antonin Scalia to suggest that those phrases would offend “devil worshipers” or atheists. Laycock soon suggested that it might not be possible to frame a prayer that would satisfy both the Constitution and atheists, but that, too, disturbed some of the Justices as hardly a way to avoid the constitutional dilemma of defining an acceptable utterance.

Laycock was in a very bad position here. He thought it unlikely that the court would rule that no prayer at all is allowed (which would overturn Marsh), so he was stuck trying to argue that prayer is okay as long as it isn’t “sectarian.” But the justices rightly caught the problem with that position. Of course, that’s a problem with the court’s own precedents, not necessary with the attorney’s position. It will be very interesting to see how the court rules here.

16 comments

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  1. 1
    Crimson Clupeidae

    As I noted on Mano’s discussion. I just wish they would follow these thoughts to the only consistent, logical conclusion, but they won’t.

  2. 2
    David C Brayton

    Justice Scalia was spot on with the devil worshipper question–if it is allowed for one religion it must be allowed for all, including atheism. Alas, I doubt he meant it that way, as evidenced by his laughter.

  3. 3
    Gregory in Seattle

    Personally, I am astonished at how thoroughly the Talibangelicals have adopted the “ceremonial deism” argument as their own. “We’re not really worshiping Jesus, it’s just ceremonial deism that continues because we have always prayed to Jesus. Now bow your heads, everyone.”

    Because, remember, Christianity was founded on the refusal to engage in the ceremonial deism of the Roman Empire. “We’re not really worshiping Jupiter, it’s just ceremonial deism that continues because we have always offered incense to Jupiter. Now take some incense and place it on the coals, everyone.”

  4. 4
    Modusoperandi

    And therein lies the incoherence of the court’s Establishment Clause precedents. Sometimes they apply the Lemon test, sometimes the endorsement test, sometimes the coercion test, sometimes no test at all.”

    Now, look, just because you find incoherence “incoherent” doesn’t mean that it is. The Lemendcoerno test is a solid test, absolute and objective. Sure, it leads to absurd and inconsistent conclusions, but this is America! This country was founded on absurdity and inconsistency!

  5. 5
    Sastra

    Laycock soon suggested that it might not be possible to frame a prayer that would satisfy both the Constitution and atheists, but that, too, disturbed some of the Justices as hardly a way to avoid the constitutional dilemma of defining an acceptable utterance.

    The thought that making atheists unhappy “disturbed” some of the Justices cheered me up. Of course, the rest of the Justices might have given that option a bunch of high fives.

  6. 6
    D. C. Sessions

    I am sooo looking forward to the challenge to the “ceremonial deism” of the Dearborn city council when it and half of the room get on their prayer rugs facing Mecca and offer the prayer to open the session.

    And then, of course, the RR from all over the country challenges the practice before the SCOTUS.

  7. 7
    rory

    I’m sure these highly learned legal minds will, after a series of contortions that would put Cirque du Soleil to shame, find a way to uphold legislative prayer for the religious majority. Maybe we can try for rationality again in another 20 years or so.

  8. 8
    Michael Heath

    This is not so much an establishment clause issue as it is a religious freedom issue. When the gov’t or its delegates pray, many people’s religious freedom rights are infringed upon.

  9. 9
    Modusoperandi

    Michael Heath “This is not so much an establishment clause issue as it is a religious freedom issue. When the gov’t or its delegates pray, many people’s religious freedom rights are infringed upon.”
    Wrong. When the government institutes (or “Establishes”) prayer, everybody has the Religious Freedom to pray to my God.
    It can’t get any more fair and equal than that. You Liberals are always going on and on about “fair” this and “equal” that…why are you suddenly against those things? Is it because you hate America and Freedom and America?

  10. 10
    davidwhitlock

    Scalia believes the Devil is real.

    I think his argument was meant to be a Reductio ad Absurdum. Any outcome that could possibly lead to prayers being said for the Devil is obviously an absurd outcome that can be dismissed as farcical. Therefore only prayers to the Christin God are acceptable.

  11. 11
    Pierce R. Butler

    davidwhitlock @ # 10: … prayers being said for the Devil is obviously an absurd outcome that can be dismissed as farcical. Therefore only prayers to the Christin God are acceptable.

    Traditional Gnosticism considers the Christian god as the embodiment of evil.

    We need more Gnostics on SCOTUS..

  12. 12
    Gvlgeologist, FCD

    Is the practice at issue in Marsh “just a historical aberration?” Kennedy asked in a quick follow-up. “What’s the source of the distinction?” Chief Justice John G. Roberts, Jr., soon asked how far the historical argument would extend, and how the Court would know when to use that as the test. Other Justices then added new queries about using historical analysis.

    And, just a few minutes later, Kennedy suggested that he was not impressed with an argument that “we’ve always done it,” that the argument about government prayer “begins and ends” with whether it was validated by history alone.

    This sounds like they’re arguing against any prayer to me. I suppose that’s too much to hope for.

    One thing about the “historical” argument is that it makes me wonder how long a practice has to be in force before it becomes “historical”. The “In God We Trust” on our coinage has been there since the 1950s, about 60 years now. This prayer has been around since 1999, 14 years. If I decided that I should open the classes that I teach at a state community college with prayers, is it OK if I don’t get caught until 2027? Or if my academic descendents don’t get caught until 2073? At what point does a clear breach of the 1st Amendment becomes a historical anachronism that is permissible?

  13. 13
    Pierce R. Butler

    Gvlgeologist, FCD @ # 12: This sounds like they’re arguing against any prayer to me.

    How many people pray to you in government meetings, or in your classes?

    How do you answer them?

  14. 14
    royandale

    “makes me wonder how long a practice has to be in force before it becomes ‘historical’.”

    10,000 years. That’s the rule.

  15. 15
    dingojack

    “makes me wonder how long a practice has to be in force before it becomes ‘historical’.”

    In English Common Law – before 6 July 1189.

    :) Dingo

  16. 16
    shallit

    The “ceremonial Deism” argument was clearly crafted to try to exempt common but unconstitutional practice. No intellectually honest person could buy it. When the national motto, for example, forces a large part of the citizenry to agree with something that is opposite to their deepest convictions, a vague appeal to “ceremonial Deism” ultimately won’t save it. I’m not confident that this court, with intellectually dishonest justices like Scalia, will do the right thing here, though.

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