Today is the day when the US Supreme Court hears oral arguments on the case of Greece v. Galloway, in which two women in the town of Greece, NY (Linda Stephens who is an atheist, and Susan Galloway who is Jewish) challenged the city’s practice of beginning its meetings with a prayer. The city had begun its meetings with a moment of silence until 1999 when it started using prayers that were exclusively Christian. When the practice was challenged in court in 2008, the city kept the practice but broadened the prayer givers and have since had Jewish, Baha’I, and Wiccan prayer leaders, though the overwhelming prayers are still Christian. The city argues that since it allows people of various faiths to pray, it is not sectarian and the fact that most prayers have been Christian is an incidental fact because of the religious composition of the community.
The local District Court ruled against Galloway and Stephens in 2010. That verdict was overturned by the Second Circuit Court of Appeals in May 2012, which ruled that the town’s practice was “an endorsement of a particular religious viewpoint” and thus violated the Establishment Clause. You can read the history of the case in that document. NPR’s Nina Totenberg also has a good summary of the case.
There has been general puzzlement about two things about this case.
One is why the Supreme Court decided to take this case in the first place since it did not seem to present any particularly interesting Establishment Clause features that would require revisiting its earlier 1983 precedent of March v Chambers. I discussed this in some detail back in May. That earlier ruling was a bit of a mess since it did not use prior Establishment Clause guidelines to arrive at its verdict but argued from history, by saying that the constitution writers had condoned such prayers in their time. It said that such ceremonial prayer was acceptable as long as it did not proselytize in favor of a religion or disparage other religions. Not surprisingly, this muddle has led to various conflicting rulings but there has been a consensus that sectarian prayers are unconstitutional, though the distinction between sectarian and non-sectarian is also problematical.
The second surprise was that the Obama administration decided to weigh on this case and on the side of the city in supporting the practice of prayer. It is suspected that they did this to curry favor with religious groups.
I am not hopeful about the eventual outcome of this case. As Amy Howe writes:
The Court overwhelmingly grants review to reverse, so the odds are against a ruling that would uphold the lower court’s decision. But if the Court does reverse, the interesting question will be the grounds on which it does so. Would it simply hold that this particular town’s prayers are close enough to the ones in Marsh v. Chambers to pass muster, or will it take a bigger step – for example, by making clear that challenges to legislative prayer are largely off limits to constitutional challenges? We will have a better idea after today’s oral argument, which we will be back to cover in Plain English.
I suspect that the court is going to give greater leeway for legislative prayers.