Hello, readers! Welcome to part two of my Town of Greece v. Galloway coverage. Two weeks ago, I previewed the case and offered a crash course in the Supreme Court’s approach to the Establishment Clause, or the portion in the First Amendment that calls for the separation of church and state. This past Wednesday, November 6, the oral argument for Town of Greece v. Galloway took place, and we will now have to wait until the end of the 2013-2014 term for a decision to be released. Considering we’ve got a long ways to go before June 2014, let’s take a look at how the oral argument played out.
Prior to the oral argument, Dean and Distinguished Professor of Law at UC Irvine Erwin Chemerinsky wrote an article for the American Bar Association Journal that previewed the case. In the article, he explains that “[Town of Greece v. Galloway] is not the first time the Supreme Court has dealt with prayer before legislative sessions. In Marsh v. Chambers (1983), the Supreme Court upheld the constitutionality of prayers before sessions of the Nebraska legislature delivered by a Presbyterian minister who was on the state’s payroll for this purpose.” I will address Marsh v. Chambers in a minute, but the more pressing issue at hand in Chermerinsky’s article is the fact that “the Obama administration filed a brief on the side of the town.” Traditionally, Chermerinksy says, “Democratic administrations have favored enforcing the wall separating church and state. In fact, even the Reagan administration in its brief in Marsh v. Chambers emphasized that non-sectarian prayers are required.” Why, then, did President Obama’s administration file a brief in support of the Town of Greece and its practice of sectarian prayer before town meetings? Obama has never been a particularly active proponent of public prayer, and unlike his predecessor, George W. Bush, the relationship between church and state has never been Obama’s focus. As such, this brief was unexpected, and I’m very confused by it.
Less confusing was the actual oral argument for Town of Greece v. Galloway, covered at SCOTUSblog in “Plain English” by Amy Howe and in more detail by my conlaw-blogging hero, Lyle Denniston. Howe’s take on the oral arguments was that “when the hearing was over, it looked like the prayers would survive,” and Denniston agreed, saying, “In the coming weeks of deliberation in private, the Justices’ challenge may well begin and end with how to keep from making the problem worse. And, at that point, leaving Marsh v. Chambers intact, allowing local governments to have prayers just as state legislatures and Congress can, might be the least cause of public agitation.” The “problem” that Denniston mentions was laid out by Justice Elena Kagan during the oral argument: namely, the fact that “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…” whenever the Court tries to address whether sectarian prayers “will be allowed in a public town session like [that of the Town of Greece]” (SCOTUSblog quoting Justice Kagan).
According to Denniston, “Marsh v. Chambers is at the center of that puzzle”—the question of whether prayer should be allowed before the Town of Greece’s town meetings—“because it upheld prayers before meetings of a state legislature, and it did so just because the Court said it could trace the practice back to the very first Congress.” However, Justice Anthony Kennedy wondered if the issue at hand in Marsh v. Chambers was “just a historical aberration,” and Chief Justice John Roberts questioned “how far the historical argument would extend, and how the Court would know when to use that as the test” (again, from SCOTUSblog). This concept of a “historical argument” comes from Marsh v. Chambers itself, so I think it’s time we explore that case. (For more coverage of the oral argument in Town of Greece v. Galloway, see the New Republic, the Economist, and the New York Times.)
Marsh v. Chambers, decided in 1983, was indeed an Establishment Clause case. Much like the issue at hand in Town of Greece v. Galloway, the problem was that the Nebraska legislature paid a chaplain to offer a sectarian prayer at the beginning of each session. Ernest Chambers, a Nebraska legislator, challenged this practice on Establishment Clause grounds because the prayers were sectarian (Christian, in this case, as a chaplain was offering them) and because public funds were being used to pay the chaplain for this service.
Contrary to expectations, the Supreme Court — under Chief Justice Warren Burger — upheld the Nebraska legislature’s chaplaincy policy in a 6-3 vote (the majority consisted of the Chief Justice and Justices White, Blackmun, Powell, Rhenquist, and O’Connor, while the minority was comprised of Justices Brennan, Marshall, and Stevens). The Chief Justice, writing for his majority, “abandoned the three-part test of Lemon v. Kurtzman, which had been the touchstone for cases involving the Establishment Clause” (from Oyez). Instead, he created the “historical argument” that was discussed in the Town of Greece v. Galloway oral argument: “prayers by tax-supported legislative chaplains could be traced to the First Continental Congress and to the First Congress that framed the Bill of Rights,” and as such, Chief Justice Burger claimed that Nebraska’s legislature was simply following in these historical footsteps. Nebraska’s practice of state-funded sectarian prayer before each legislative was not a violation of the Establishment Clause in Burger’s eyes, but rather “a tolerable acknowledgement of beliefs widely held among the people of this country.”
Bringing the focus back to Town of Greece v. Galloway, and applying Chief Justice Burger’s logic in Marsh v. Chambers to the situation at hand, I think things don’t necessarily add up. In Town of Greece v. Galloway, there isn’t the presence of public funding for the chaplain (or other religious official) delivering the prayer, which was a key aspect of Marsh v. Chambers, and the setting for these prayers is an open-to-the-public town meeting as opposed to a session of a state legislature. To me, the circumstances are different enough that the concept of “prayers by tax-supported legislative chaplains” that “could be traced to the First Continental Congress and to the First Congress that frame the Bill of Rights” is not applicable as a historical precedent for the situation at hand in Town of Greece v. Galloway.
I understand why Justice Kagan is concerned that “everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways,” as she said in the oral argument on November 6. The Supreme Court’s public image has been tarnished ever since its unpopular and controversial decision in Citizens United v. FEC, and religion is an even more sensitive subject in this country than whether corporations deserve the same rights as people. However, it’s not the job of the Supreme Court to protect its reputation like a status-conscious high schooler; it’s the job of the Supreme Court to decide whether various practices are unconstitutional. The Court needs to be willing to leave behind this outdated “historical argument” put forth in Marsh v. Chambers — Chief Justice Burger’s claim that the sectarian prayers in question in that case were representative of “beliefs widely held among the people of this country” no longer holds water in a society as heterogeneous as America in 2013. Instead, the justices should look to the Lemon test as a guide for navigating this tricky Establishment Clause case. Or, if the Nine are reticent to use that precedent, it might be time to set a new standard for the separation of church and state. America is not supposed to ascribe to one particular system of religious beliefs, and governing bodies, such as the town board of the Town of Greece, need to reflect this principle.