Prayer for Me, But Not for Thee: The Supreme Court Hears Argument on the New Legislative Prayer Case

Case Name: Town of Greece v. Galloway

What this Case is About? The First Amendment, more specifically the Establishment Clause (the government cannot establish a state religion) in the First Amendment. The town Greece, New York is outside of Rochester and has a population of approximately 100,000. In 1999, Greece's Board of Supervisors decided to open the town's meetings with a prayer. Given that this is upstate New York, the prayers were usually Christian in nature, though other religions were occasionally asked to participate. Nevertheless, the prayers were largely dominated by Christian clergy. Two town residents expressed their concerns about this to the board, then brought suit.

What's at Stake? Whether prayer to start legislative (or legislative-like) sessions is constitutional? In a 1983 case (Marsh v. Chambers), the Court found no constitutional problems with the Nebraska legislature's practice of having a chaplain open each legislative session with a prayer by a Presbyterian clergy member. The Court looked back to our history of opening such sessions with prayer and was unperturbed by Nebraska's practice. (By the way, did you know that Nebraska is the only state with a unicameral legislature? Now you do).

And there the law has stood for the past 30 years. Though the Court has taken up some school prayer cases in the meantime, it has not revisited the issue of legislative prayer. The decision to take this case could signal some desire on the part of at least some justices (four, at a minimum) to change the law on legislative prayer.

What's Going to Happen? The tea leaves were hard to read. What the justices said at oral argument makes it difficult to guess with any accuracy how the case will turn out. It seems fairly clear that Justices Scalia and Thomas will side with the town -- they would define "coercion" in the First Amendment context very narrowly (such as the government forcing you to pay taxes to support a certain religion). Both are staunch Roman Catholics.

Justice Kagan appeared troubled by the town's practice, but also warned that

"because the Court lays down these rules and everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways....And every time the Court gets involved in things like this, it seems to make the problem worse rather than better."

This will be Justices Roberts and Alito's coming out party on this issue, and Roberts seemed inclined to rule narrowly on this issue. I hope.

At all events, this seems a rather picayune issue in the larger scheme of constititonal issues. If legislatures are allowed to have prayer, it seems rather inane to prevent town hall type meetings from having the same right. Yes, some limitations are in order, but adding another wrinkle to First Amendment law seems unnecessary. Kagan's words of wisdom that the Court might do better to stay out of this constitutional thicket is sage advice.

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