Scotusblog provided a timeline of the Greece prayer case, along with links to all the filings and Friends of the Court briefs that were submitted. (For more see here and here.) In September, in preparation for this case, Scotusblog also had an online symposium on it and invited several people with differing views to submit opinions, which I briefly summarize below. Note that these were written before the oral arguments yesterday.
Carl H. Esbeck, a professor of law at the University of Missouri, asks the fundamental questions: “The question presented is not whether the policy favored the religion of those invited to pray, but that legislative prayer knowingly favors the religious practice of invoking the guidance of a superintending God” and “Can government knowingly take sides in a matter of religious belief or practice? More to the point, can government actively support a practice that is explicitly religious, such as prayer?” He argues that the answer should be ‘no’, because mixing government and religion harms both.
Jessie Hill (who happens to be a colleague of mine at the Law School at CWRU) tries to understand why the Supreme Court took this case. She shares my puzzlement.
Certainly, there are reasons that the Supreme Court would want to consider a legislative prayer case. Legislative prayer has been the subject of significant activity in the lower federal courts, and it may well be time for the Court to clarify its doctrine in this area. Many lower courts have seemed to take Marsh as a sort of blanket immunity for prayer practices, even sectarian ones, in any kind of legislative setting.
But Galloway is an exceedingly odd vehicle for the Court to accomplish any major doctrinal shifts or clarifications.
Nelson Tebbe, a professor lof law at Brookly Law School, speculates as to the possible reasons for the Obama administration to enter the case on the side of the city, saying that ” the [Solicitor General] has proposed a test for determining the constitutionality of legislative prayer that aligns with the most permissive approach that circuit judges have developed in previous cases on legislative prayer. What happened? … Overall, the [Solicitor General] gives the impression that only legislative prayer that has the purpose of proselytizing or disparaging a particular faith is unconstitutional. That is strikingly permissive. Might it even permit legislators to adopt a policy of opening every session in the name of Jesus Christ?” He says that the Obama administration is basically asking for the abandonment of the endorsement test and he feels that this would be a bad idea.
Daniel Mach of the ACLU says that the earlier Marsh precedent that allowed prayer as long as it was not sectarian was wrongly decided and hopes that this court will strike down government prayer altogether. “Marsh flouted the fundamental principle of religious neutrality and is a notable outlier in the Court’s First Amendment jurisprudence. Neither before nor since has the Supreme Court upheld government-sponsored prayer, and with good reason.”
Eric Rassbach of the Becket Fund says that the people challenging the Greece prayer won their case in the Appeals Court by arguing that the practice endorsed religion but changed their argument in the Supreme Court to argue that the problem with the Greece prayer was the element of coercion involved. He thinks it is because they suspect that the judges are not supportive of the endorsement test.
Steven D. Smith, a professor of law at the University of San Diego, hopes (like Rassbach) that the court will use this case to dump the ‘endorsement’ test first articulated by justice Sandra Day O’Connor. He argues that a full-throated application of that test would require us to thoroughly weed out all references to god in everything that the government does, to the extent of changing the wording on historical monuments. (This is a bit extreme and Chief Justice Roberts said as much in yesterday’s oral arguments when he said that while we would not require old monuments to change, a new one that looked like an old one would rightly come under close scrutiny.) He also argues on behalf of the rights of religious people for public expressions of their views and that “These citizens will likely not be beguiled by the official fiction that equates “secular” with religiously “neutral.””
Ken Klukowski of the Liberty University School of Law hopes that the Court will use this to dump both the Lemon test and the endorsement test altogether. He argues that the only restriction on religious practices should be if there is an obvious coercive aspect to them, and having prayers at government functions does not constitute such coercion. He wants a complete rejection of precedents that set limits on public eepressions of religious belief.
Any reference to religion or faith-related display in a public setting is therefore democratically accountable. It either comes from an elected official, or from a public servant under the supervision of an elected official. The voters can demand that those elected officials reflect their preferences.
Elections have consequences. If a community doesn’t want its elected leaders to facilitate religious displays or expressions, it can elect new leaders. If that effort fails, then perhaps the public does not support its secular agenda. For such dissenters, the Establishment Clause is not automatically a second bite at the apple; it is instead only triggered when there is actual coercion (not peer pressure), or official establishment.
I really doubt that the Supreme Court will adopt either of the two extremes suggested by some: that of banning official prayer at government functions altogether (which I think is logical, constitutional, and workable in practice) or saying that sectarian prayers are acceptable in all government settings (which I think is unconstitutional and will cause all manner of sectarian strife).
What I cannot see is what kind of middle ground they can agree on.