The symposium held yesterday at the law school at my university went very well, I thought. The weather was brutal, with low temperatures and winds making it seem much colder. Combined with the snow left over from the previous night that had turned into slush and ice making walking unpleasant, to put it mildly, I wondered whether there would be many people who would venture out. I was pleasantly surprised to see that the auditorium was almost full, with students and faculty and members of the community braving the weather to come and hear about an issue that they clearly thought was important.
After opening remarks by the moderator professor Jessie Hill of the Law School who described the events in Greece that led to the case, Drew Dennis (staff attorney of the Ohio ACLU) gave a brief history of how Establishment Clause doctrine had evolved over the years leading to the Lemon and endorsement doctrinal tests for constitutionality, and how over time the courts have expressed dissatisfaction with those tests and used them in an ad hoc manner but never going so far as to reject them or replace them with something else.
Then I spoke and I explained why I had been surprised by two things: the reasoning by the Second Circuit Court of Appeals in the Greece case to bypass the 1983 Marsh guidelines and rule the prayer practice unconstitutional, and then briefly speculated as to the reasons why the Supreme Court might have decided to hear the case. Since I have an ongoing series of posts on this topic, I will not repeat those views.
We then had Susan Galloway speak. She is a 51-year old Jewish woman who, along with an atheist Linda Stephens, brought the suit challenging the prayer practice of the town of Greece. She spoke in personal terms of how uncomfortable she felt at town meetings during the prayer part. It was not the case that the prayers were directed at members of the town council with the community members as observers. The prayer giver spoke from a lectern facing the townspeople attending the meeting, and the prayers were clearly aimed at them and sometimes asked them to stand up and were often explicitly Christian, invoking the name of Jesus and the Holy Spirit and so on. She said that she felt coerced to stand because if she did not do so, her requests to the town council might be adversely affected because she would be seen as someone who was anti-Christian.
There are no synagogues in the town of Greece and when she spoke to rabbis in neighboring townships about her experience, they were less than sympathetic to her plight, implying that this is what she should expect if she chose to live in a town that had hardly any Jews. But Galloway rightly felt that the number of people in a minority should not matter when it came to religion and public business. She said that she has been at the receiving end of abuse and hate for taking the town to court to stop the practice.
After our opening remarks and during the Q&A, one person asked whether it was possible to design a religiously neutral prayer that would be constitutional. I responded that it seemed unlikely that one could come up with one that would satisfy people from all religions (and the oral arguments in the Greece case bore that out) but that even if one could thread that needle and come up with either a prayer or guidelines for such prayers, that would be tantamount to the government dictating the content of prayers, something that the courts have ruled to be clearly unconstitutional.
Another question was what kind of tests should be applied in such cases and Drew said that it should be the one of strict neutrality and that in the case of prayer, the only one that satisfies it is not having prayer at all. I agreed with him.
Another question was whether the act of standing during prayers that was the problem. Susan said no, she just felt uncomfortable having to listen to all this Christian worship going on around her. It made her feel like she was in church and not a town meeting.
A final question was to predict how the Supreme Court might rule. Predicting such things is a mug’s game (as one can recall when nearly all the pundits were dumbfounded by the ruling on the Affordable Care Act last summer) but I said that the possibilities ranged from a very narrow ruling (likely designed by justice Ginsburg) that because the meetings were a mixture of legislative and administrative, the court might rule that prayers in such settings were unconstitutional, while exempting purely legislative prayers. At the other extreme was the view suggested by justice Scalia that prayers only represented the personal views of the prayer giver, not the government, and thus anything goes.
I thought that the court was unlikely to take the highly radical step that Scalia was advocating and might rule more narrowly, either for or against the prayers in Greece (I will describe these options in the last post in this series to appear later) but without introducing any new sweeping doctrine. That would add to range of Establishment Clause guidelines that currently exist.