SCOTUS Grants Cert in Legislative Prayer Case

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.

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  • Homo Straminus

    I used to live in ROC, and at one time or other thought about moving to Greece. I don’t know if this practice would’ve made me want to move there more (in order to test just how egalitarian they really are) or less.

    They definitely have a nice beach park and hotdog restaurant, I can say that much.

  • Steve Holland

    The continued chipping away of Church and State has long been the course that the evangelical right wing christians have been doing for the last several decades with the Dominionism movement. The taking over of our school boards, city, county, state and federal government elected officials in order to have laws changed and if challenged work it’s way up through the courts. They know if they can get Supreme Court rulings in their favor it will undermine freedom of religion as we know it truly was meant to be. It is a minority of people but this minority has snuck in without alarming the general population. If this trend continues unopposed through the courts by organizations (christian law firms) bent on making this country a theocracy we may very well be living in one in the not so distant future.

    Americans of faith and non-faith need to see what is happening to this country by these people, Nazi Germany is a perfect example of where this is headed.

  • Homo Straminus

    Whoa! Godwin’d at #2! That’s almost a record.

  • Well, does that mean that the nitwits in Greece will be open to prayers to FSM? Cuz, if they ain’t, oh, well. I can see Tony Ducks saying this is more of that meaningless symbolism, like the cross in the desert.

  • Worldtraveller

    As I noted on Mano’s post about this, I suspect that the SCOTUS might make a narrow ruling on the fact that (assuming I recall the details correctly), the Greece case explicitly requires opening with a prayer, although the law is careful to say that they should be chosen in some way to make it ‘fair’. As with most of these cases, the choosing is probably done not in some random way, or not by a lotto or wait list, but a person is chosen at each meeting, meaning that they can continue to ignore the Wiccan/Atheist/Muslim/whatever as long as they can get a nominal xian to pipe up and volunteer.

  • Synfandel

    If I were a rate payer in Greece, I’d be telling my city council to get on with the work it’s being paid to do. Councilors can play solitaire, watch YouTube videos, pray, and update their Facebook status on their own time.

  • Karen Locke

    I, too, am uncomfortable with this, and I think SCOTUS will get it wrong. I have yet to hear a reasonable argument about why these sorts of meetings require an invocation, or a pledge, or any such time-wasting BS. What’s wrong with “Welcome everyone, let’s get down to business”?

  • Synfandel

    We’re completely in agreement, Karen, about the inappropriate waste of time. Unfortunately, that’s not what SCOTUS is being asked to rule on. It’s up to the voters of Greece to decide how their councilors should spend their working time. SCOTUS has to decide whether this particular obvious waste of time is also a violation of the first amendment. The constitutional question would be moot if voters fired politicians who frittered away tax payers’ money on public woo.

  • baal

    Excellent framing Ed!

    My fear is that this case’s facts make it very easy for the court to hold that so long as you use a lottery, have any prayer you want. The xtianists will then stack the lottery pool to the point where only sectarian prayer is left (and not being chosen ‘randomly’ it’s totes ok.

  • 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.

    Has anyone tried inviting an imam to give the opening prayer?

  • eric

    CD Wilson @10 has the right point. To expand on it a bit further:

    1. Scotus will likely rule that the prayer is constitutional so long as the council’s invitation process is theoretically open to all religions and none.

    2. The only way to show its unconstitutional at that point is to demonstrate that it’s not actually open to all religions and none. That, when unpopular minorities apply to give it, the council does not allow them to participate.