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…]

Update on the Mount Soledad cross saga

When we last discussed this story, on December 12, 2013 a US District Court judge had ordered the removal of the huge cross on the top of Mount Soledad, staying his order for 90 days until any appeals are filed and heard. The Ninth Circle Court of Appeals had ruled that the cross standing on federally owned land was a violation of the Establishment Clause and the situation needed to be remedied in some way and while the District Court judge said he disagreed with the ruling, given the constraints the Appeals Court had imposed, he saw no option other than its removal. [Read more…]

Prayer at government functions-4: The role of history and tradition

Justice Hugo Black’s majority opinion in Everson v. Board of Education laying out the neutrality requirement that governments needed to comply with when it came to religion (that I summarized in part 3) basically said that the government had to be strictly neutral between religious sects and also between religion and non-religion. That latter requirement has been particularly difficult to implement without requiring the government to not have anything to do with religion at all and over time we have seen a steady weakening of the resolve to implement it. [Read more…]

Prayer at government functions-3: The tricky issue of neutrality

In ruling that the prayer practices of the town of Greece were unconstitutional, the Second Circuit Court of Appeals basically said that the US Supreme Court, in its 1983 precedent-setting case Marsh v. Chambers, had used the wrong reasoning by rejecting the so-called Lemon Test and other tests for Establishment Clause violations and using instead an argument based on history and tradition. It is quite unusual for a lower court to challenge a Supreme Court precedent and the Appeals Court had to do some dancing around to justify this. [Read more…]

Prayer at government functions-2: The nature of the Greece prayers

Like many observers, I was puzzled by the decision of the US Supreme Court to accept the case in which in 2008 two citizens of the town of Greece in upstate New York (Susan Galloway who is Jewish and Linda Stephens who is an atheist) sued the town council for beginning its monthly meetings with a prayer. As I said in the first post in this series, there was nothing in this case that seemed to exceed the boundaries established by the precedent 1983 case of Marsh v. Chambers and since those prayers were ruled constitutional, then one would have expected these to be too. The District Court ruled in 2010 in just such a manner but in May 2012 the Second Circuit Court of Appeals surprised everyone by unanimously overruling the District Court verdict, and the US Supreme Court took up the case, hearing oral arguments in November 2013. [Read more…]