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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. Newdowa 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.

9 Comments

  1. James Keegan

    An interesting related side note IMHO courtesy of Dean Chemerinsky:

    http://www.latimes.com/opinion/commentary/la-oe-chemerinsky-prayer-in-govt-meetings-scotus-20131105,0,2149560.story#axzz2jzEQLIEA

  2. Edward Nethery

    Mark,

    “Some constitutional determinations are just not worth the societal commotion.” That may not be one of the constitutional principles I learned in college and law school, but it is very wise. Perhaps it should be a First Principle in regard to separation of church and state.

    I find the use of tax credits for religious schools far more troubling, and vehemently disagree that the citizen litigants lacked standing.

    Regarding prayer to open public meetings, I am like Shaw or Russell – I can’t recall which one said it, Bertie Russell I would wager. ‘On Mondays, Wednesdays, and Fridays I am agnostic. On Tuesdays, Thursdays, and Saturdays, I am a Christian. On Sundays – I just don’t give a damn,’ or words to that effect.

    Prayers before a public meeting, a football game, before Congress convenes whenever they decide to work – I just don’t give a damn.

    • I fully agree with the tax credit thing.

      As for prayers before a public meeting, it is also wasteful because it invites lawsuits like this one. If you can’t play nice and pay homage to all faiths in a place through some non-sectarian generalized hosannas, don’t bother. A town hall is not a church.

      Religious convictions are like genitalia. You don’t have to wave it around in public for everyone to know you have it.

  3. G. E. Schwartz

    Sadly, your piece lacks a major piece of invaluable information: Those serving on the Town of Greece Board have also discriminated AGAINST Catholic prayer. Please know all the facts before you chime in.

    • Its not relevant. But Catholics didn’t file the lawsuit. One cannot bring an action before Federal Court without showing they are harmed by the actions of another. People can’t bring a suit on behalf of the harm others.

  4. Brian Westley

    Here’s one reason why prayer before a city council meeting is a bad idea:

    Suppose you want to ask the council for a land use variance, and one of your neighbors is against you getting the variance.

    When you get to the city council meeting, it opens with a prayer. It isn’t of your religion, or for other reasons, you can’t/won’t participate in the prayer. Your neighbor does take part in the prayer, and it’s obvious to everyone on the city council that you are NOT praying with them, and that your neighbor IS praying with them.

    After the prayer, you petition the council for your variance, and your neighbor argues against granting your petition.

    The city council decides against granting your variance.

    Did they do so because they are prejudiced against you? You’ll never know. Even if they decided fairly, by these very actions they give the appearance of religious favoritism, even if none exists.

    The only real solution is to not have prayers before such city council meetings.

    • Well that argument only works if you are interested in fairness and not showing prejudice. Unfortunately the people who are most in favor of these kind of prayers specifically want to give the impression their religion is more important than all others. =)

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