The Greece v. Galloway symposium

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. [Read more…]

Prayer at government functions-8: Why government prayer is never purely ceremonial

In his dissent in Marsh v. Chambers, justice William Brennan reinforced the Supreme Court’s earlier precedents that while there may be situations in which certain kinds of prayers may pass constitutional muster, it should never be the case that the government actually designs the prayers or acts as a censor to determine what prayers are allowed or not allowed. Even chief justice Warren Burger in his majority opinion said that “it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.” [Read more…]

Prayer at government functions-7: Why the ‘history and tradition’ argument is faulty

In the 1983 precedent-setting case of Marsh v. Chambers that found ceremonial prayer at the opening of legislative sessions in Nebraska to be constitutional, one of the three dissenting voices was Justice William J. Brennan, himself a practicing Catholic. He argued strongly against the kind of ad hoc reasoning being advanced by chief justice Warren Burger in speaking for the majority, saying that it was clear that the court was trying to make legislative prayer into a special case purely because it did not want to overturn a long-standing practice. [Read more…]

Virginia may approve same-sex marriage

Virginia may become the first southern state to legalize same-sex marriage if a court there decides to overrule a current ban. If so, it would join Utah and Oklahoma in that situation and it illustrates once again how states and individuals have changed their views over time. It is expected that the plaintiffs will likely use the same arguments that were successful in the other two cases, using the US Supreme Court’s reasoning (including justice Scalia’s dissent against the decision) in last year’s Windsor case that the Equal Protection clause of the 14th Amendment required the state to treat all marriages equally, irrespective of gender. [Read more…]

Symposium on the Greece v. Galloway case

I will be part of a panel that will discuss the Greece v. Galloway case at an event that is free and open to the public. The actual title of the session is (for some obscure reason) Religion and the Constitution in Modern Life. It is interesting that although the topic is one involving constitutional law and is being held in the Law School under the auspices of American Constitutional Society, they have seen fit to invite a non-lawyer like me to participate. [Read more…]

Prayer at government functions-5: Introducing the endorsement test

The Lemon test to judge whether violations of the Establishment Clause had occurred is not always easy to apply in concrete cases and some justices of the US Supreme Court have often expressed its unhappiness but others have opposed outright rejecting it. This is especially true of the second ‘effect’ prong which is hard to evaluate. Furthermore, the test was formulated in a case that involved legislative actions. What about situations involving government actions such as prayer and Bible readings and religious instruction in public schools, the display of religious artifacts such as the Ten Commandments on government property, ceremonial opening prayers at government functions, etc.? [Read more…]