On November 6, 2013, the Supreme Court will hear arguments in the case of Town of Greece v. Galloway – a case that poses the questions whether a town may allow private citizens to voluntarily open public meetings with prayer, and whether the person praying has the liberty to choose how to pray.
The case has commanded the attention of the legal community. Indeed, SCOTUSblog.com, an influential resource for appellate lawyers and judges that reports on Supreme Court activity, referred to Town of Greece as “the major new test case on church-government relations.” Another judicial commentator noted the case could produce “the biggest religious liberty victory for Americans of faith in decades.” Law schools are using the case to set the stage for their internal debates and court room training. Why the attention? What’s the big deal?
Yes, the fact that a U.S. Court of Appeals struck down the practice of legislative prayer is shocking and should alarm every American. It is a practice that predates the country’s founding and is so clearly consistent with the Constitution that the Supreme Court called it part of the “fabric of our society”. But the legal community is on alert because the court is reviewing more than the case outcome. The Court has already established precedent that will likely control the outcome. Just 30 years ago, in the case of Marsh v. Chamber, the Supreme Court considered the questions raised in the Town of Greece case and concluded that “[t]o invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an ‘establishment’ of religion or a step towards establishment.” In other words, legislative prayer does not violate the Constitution.
So why is the case buzzing in the legal community? This case has captivated the legal community because the Supreme Court has agreed to review both the outcome and the reasoning used by the Court of Appeals in striking down the practice. The Court of Appeals’ reasoning dismissed historical practices and an understanding of the First Amendment that has existed for nearly 200 years. Instead, it replaced the understanding with a legal theory promoted in recent years that asks how a fictional observer would perceive government action. Rather than considering historical factors, or asking whether the government compelled people to support or participate in a religious exercise, the relatively new “endorsement test” asks only whether an observer is likely to think that government action is supporting or promoting religion.
For the last few decades, the challenges under this “endorsement test” have included: a challenge to the National Motto “In God we trust;” a challenge to the inclusion of “one nation under God” in the Pledge of Allegiance; as well as challenges to religious symbols on memorials to fallen heroes, religious holiday displays, the National Day of Prayer, and the public posting of the Ten Commandments.
The “endorsement test” has been applied erratically, leading to widely inconsistent results. The ensuing confusion has produced much criticism of the test from lawyers, judges, and legal scholars, including current and former Supreme Court justices. Yet the lower court struck down the Town’s invocation tradition while disregarding the inconvenient history that Congress itself has engaged in the same practice for more than 220 years. Such is the inconsistency brought by this “endorsement test.”
The subject of the Town of Greece case is prayer at public meetings, which makes it a major test case for religious liberty. But in affirming a cherished American tradition, the Court could also go further and strike down the “endorsement test” as a failed experiment in constitutional jurisprudence. Returning to a principled understanding of the First Amendment, one that promotes religious liberty, would be monumental and worthy of being billed as “the biggest religious liberty victory for Americans of faith in decades.”
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