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.

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