Another Day in Court for Prayer in Legislative Settings

CWRU Law Professor Jessie Hill asks: What is the Supreme Court up to?

News Release: Wednesday, November 6, 2013

The U.S. Supreme Court is revisiting whether prayer at the start of legislative sessions is constitutional. But why?

The current case, Town of Greece v. Galloway, focuses on a town board in Greece, New York. The case comes about 30 years after a well-known Supreme Court ruling in Marsh v. Chambers, upholding the state of Nebraska’s legislative chaplaincy based on perceived longstanding history and tradition.

Case Western Reserve University Law Professor B. Jessie Hill’s recent online SCOTUSblog post considers Town of Greece v. Galloway and asks, “What is the Supreme Court up to?”

The issue in Greece v. Galloway is whether a federal court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause, in which the First Amendment separates the functions of church and state and prevents the government from establishing any religion. Sometimes the separation is blurred, especially when prayer has been standard practice in a community.

In the Greece v. Galloway case, two local citizens argue that the specifics of their town’s policy of starting board meetings with a prayer violate the Establishment Clause, largely because the practice promotes Christianity. The town contends its policy does not violate the clause, because residents of all faiths are permitted to serve as chaplains and the practice meets the Supreme Court standard in Marsh v. Chambers. Obama administration Solicitor General Donald Verrilli filed a brief siding with the town.

Legislative prayer has been the subject of conflicting findings in the lower federal courts, and it may be time for the Supreme Court to clarify its doctrine, Hill writes. Many lower courts have seemed to take Marsh v. Chambers as a sort of blanket immunity for prayer practices in any kind of legislative setting, she continues.

As Hill notes in a Social Science Research Network paper Anatomy of the Reasonable Observer, forthcoming in the Brooklyn Law Review, commentators have been prematurely tolling the death knell of the “endorsement test” used by the Supreme Court in some Establishment Clause contexts. Galloway is an exceedingly odd vehicle for the Court to accomplish any major doctrinal shifts or clarifications, Hill argues.

Hill acknowledges that perhaps the Court intends to engage in simple error correction—to find that the Second Circuit applied the wrong legal analysis to a set of facts and that the result therefore should have been different.

“But it is hard to see why the stakes in this particular case would have struck the Court as sufficiently high to require this sort of correction” Hill has noted in the blog post. “The case seemed to have no national importance before the Supreme Court accepted this case for review. So why did the Court bother? I don’t pretend to have an answer to that question—the mystery may only be solved when the Court hands down its decision, if even then.”

It takes four votes to grant certiorari (review) in a case but five votes to decide a constitutional issue. “It’s possible that four justices saw the case as a chance to reshape Establishment Clause law, but whether they will get the votes to do that may still be up for grabs. Whether the Galloway case will go out with a whimper or a bang, no one can say for sure at this point – maybe not even the justices themselves,” Hill wrote.

Posted by: Marvin Kropko, November 6, 2013 04:09 PM | News Topics: