I’m going to go out on a limb here and predict that the Supreme Court will decide Town of Greece v. Galloway by declaring that the plaintiffs lacked the standing to challenge the Greece town council’s opening prayers. The Rochester suburb will thus be free to continue to begin its meetings with whatever prayers it likes.
There is widespread agreement that the court will be very reluctant to declare prayers opening such meetings as unconstitutional establishments of religion — and I think the conventional wisdom is right. Back in 2004, the justices agreed to decide Elk Grove United School District v. Newdow, a case challenging the constitutionality of “under God” in the Pledge of Allegiance, and then dismissed it on the grounds that plaintiff Michael Newdow lacked the standing to bring it in the first place. Some constitutional determinations are just not worth the societal commotion.
The trouble is that the available jurisprudential standards for upholding town council prayers aren’t very good. The three-pronged Lemon test requires the government act to have secular purpose, to neither advance nor inhibit religion as its primary effect, and to not involve an excessive government entanglement with religion. Yesterday’s oral argument showed problems with all three prongs.
As for Sandra Day O’Connor’s endorsement standard, it’s hard to argue that beginning town council meetings with prayer doesn’t constitute an endorsement of religion. That throws things into the realm of longstanding historical practice: Since legislative bodies have had chaplains saying prayers since the beginning of the Republic, these cannot be considered in violation of the Establishment Clause. The oral argument showed the justices not very enthusiastic about this, especially since the Greece town council only began inviting prayers in 1999.
A central question in the oral argument was whether there was an element of religious coercion in the prayers, for in contrast to the court’s 1983 precedent (Marsh v. Chambers) permitting prayer in state legislatures, town council meetings involve the active engagement of ordinary citizens. The liberals on the court were disposed to see Greece’s prayers as coercive; the conservatives, not so much.
Two years ago, in a 5-4 decision written by Anthony Kennedy, the court determined that citizens had no right to bring an Establishment Clause challenge against an Arizona law permitting tax credits to be used for contributions to religious schools (Arizona Christian School Tuition Scholarship Organization v. Winn). Writing in Religion in the News, the American Jewish Committee’s Marc Stern points out that this decision has led lower courts to dismiss for lack of standing Establishment Clause cases by atheists challenging days of prayer.
My prediction is that Kennedy will end up writing another 5-4 decision holding that the Greece town council prayer practice is non-coercive and therefore that the two plaintiffs, a Jew and an atheist, had no standing to challenge the predominantly sectarian Christian praying. You heard it here first.