In a move that makes me quite uncomfortable, the Supreme Court has granted cert (that is, agreed to hear an appeal) in a New York case involving the question of whether a legislative body, in this case a city council, can open its meetings with explicitly Christian prayers.
he justices said they will review an appeals court ruling that held that the town of Greece in suburban Rochester in upstate New York violated the Constitution by opening nearly every meeting over an 11-year span with prayers that stressed Christianity.
The 2nd U.S. Circuit Court of Appeals said the town should have made a greater effort to invite people from other faiths to open its monthly board meetings.
The town says the high court already has upheld prayers at the start of legislative meetings and that private citizens offered invocations of their own choosing. The town said in court papers that the opening prayers should be found to be constitutional, “so long as the government does not act with improper motive in selecting prayer-givers.”
If I had to bet, I’d bet against getting a favorable ruling given the current makeup of the court. But ThinkProgress is overreacting more than just a bit when they claim that the case will “probably nuke separation of church and state.”
Instead, the Roberts Court’s majority has thus far been content to chip away at the wall between church and state a piece at a time. In Hein v. Freedom From Religion Foundation, the Court immunized many Executive Branch actions from suits claiming they violate the Constitution’s ban on “law[s] respecting an establishment of religion.” And in Arizona Christian School v. Winn, they empowered government to subsidize religion so long as those subsidies are structured as tax benefits and not as direct spending. But the core question of whether the government can “demonstrate . . . allegiance to a particular sect or creed” likely still must be answered in the negative.
The case the Court agreed to hear today, Town of Greece v. Galloway, is likely to change that. The ostensible issue before the Court is whether a municipal legislature violated the Constitution’s ban on separation of church and state when it began its meetings with overtly Christian prayers roughly two-thirds of the time. Yet the case also explicitly tees up the question of whether a government “endorsement” of religion of the kind rejected by O’Connor is permitted under the Constitution. If you’re placing bets, the odds are overwhelming that five conservative justices will say that such an endorsement is permitted.
Poor analysis. The issue in this case is considerably narrower than this suggests. The endorsement test is not really at issue here at all. The Supreme Court has already ruled that legislative bodies can open their meetings with prayer. What is at issue here is the relatively narrow question of whether the city council’s practice of allowing different clergy to deliver those prayers can violate the Establishment Clause even without direct evidence that the city did not discriminate in choosing those who delivered them.
I don’t expect a good ruling here, but let’s not pretend that this one case is likely to make some dramatic difference. It isn’t. I expect a narrow ruling that focuses on the narrow question of what standard to apply to the case. The court could decide to go for a much broader ruling that would, say, get rid of the Lemon test, but they’ve had plenty of opportunity to do that before and have not. I don’t think there’s much chance of that happening here.