2013-14 Supreme Court Term, Part 4: Town of Greece vs. Galloway


Part 4 of an occasional series on the recently completed Supreme Court Term detailing the most important cases (in my judgement, of course) and their likely impact. See Parts 1, 2 and 3.

  • Town of Greece v. Galloway A 5-4 split decision, the Court held the opening of town meetings with a prayer by members of the clergy did not violate the establishment clause as it is consistent with long tradition, it is not restricted only to clergy of a particular faith and participation is not compelled. The opinions on this on are all over the map: Kennedy, J wrote the majority opinion, joined by Roberts, CJ and Alito, J as well as joined except as to part II-B by Scalia and Thomas, JJ. Alito, J filed a separate concurrence, joined by Scalia, J. Thomas, J filed a separate concurrence, joined by Scalia, J as to Part II. Breyer, J filed a dissent, in which he argues the facts of the case mitigate against the judgement, specifically the town used clergymen nearly exclusively from the town (duh!) and many citizens worshiped outside of the town limits;  and Kagan, J another, joined by Ginsburg, Breyer and Sotomayor, JJ, which opinion IMHO is kind of confused, arguing the town meetings don’t have to be a religion free zone, but the town council didn’t make enough effort to be “inclusive.”

As I mentioned in the last part, it looks like the Chief Justice is pretty serious about the First amendment. This is another such case, about the Establishment Clause rather than political speech as in the last. The Town of Greece, NY opens  it’s town meeting with a prayer. The prayers are offered by the local clergy members, and are open to any such in the town. Both Jewish and Baha’i prayers have been offered, in addition to Christian prayers, and the town also offered a Wiccan the opportunity, who declined and later accepted.  Respondents in the case sued to compel the town to use “inclusive and ecumenical” prayers referring only to a “generic God”, (whatever that might mean), claiming they felt “offended and excluded.” District Court rejected their claims, finding summary judgement for defendants, on the grounds the predominantly Christian nature of the prayers was a reflection of the predominantly Christian nature of the town itself and did not represent an attempt to establish Christian practice by the town council; that the council was not obligated to seek additional clergy members outside the town to achieve religious diversity; and rejecting the claim legislative prayer must be nonsectarian in nature. Second Circuit disagreed, reversing the District Court, saying when viewed in totality the town’s practice did amount to the town promoting the Christian faith. The Supreme Court disagreed again, reversing the Second Circuit.

Justice Kennedy wrote for the majority, joined fully by Roberts and Alito, and joined in judgement and in opinion except part II-B by Thomas and Scalia. Kennedy opens by reminding everyone the Court determined in Marsh v. Chambers the historical record indicates legislative prayer does not offend the First amendment all the way back to the Founder’s days as our first legislature hired a chaplain shortly after writing the First amendment; and saying the “content of the prayer is not of concern to judges,” provided “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” In the pesky Part II-B, Kennedy observes the town did not coerce anyone to pray, or offer any indication that absence from, or refusal to particiate in, such prayers would affect the council’s deliberations.

The separate concurrence by Thomas, joined by Scalia, as to part II questions the validity of attaching the Establishment Clause to the States via the Fourteenth amendment, and even if such attachment is properly so done, says the case in question does not violate the Establishment Clause as the kind of “subtle pressure” alleged by respondents does not amount to legal coercion of any kind, and is entirely different from the sort of state-established religions the Founders were trying to combat in writing the First amendment as those sects were intended to use government force to compel tithes or attendance or control the faith’s doctrine.

Kagan writes the main dissent. Basically, she thinks the town should advise prayer-givers to remember they’re addressing a multi-faith audience and not use their prayers in an attempt to convert, or to disparage another faith, as both the Houses of Congress now do, and to cast their prayer-giver net wider in an attempt to include more religions. In reading the opinion– and Breyer’s, who offers yet another dissent reiterating the same points– I thought it sort of flighty. They really can’t officially object to legislative prayer in toto, due to Marsh. The political left in general, and I’m sure these Justices in particular, would prefer to see legislative prayer outlawed (actually, a lot of the political left would like to see prayer outside churches outlawed, and many of them would restrict it within them; they know religion– all faiths– is their most dangerous enemy and Big Gov is a jealous god) or, failing that, be restricted to nonsectarian forms. However, both the Constitution and the historical record is against them. The dissent is nothing more than yet another attempt to at least limit something they don’t like and can’t control.

The reason this case is important beyond the borders of the Town of Greece is the majority has essentially resolved the issue of legislative prayer permanently. Rather than relying on a judicial test, they have basically said legislative prayer, so long as it is not coercive, is Constitutional no matter what form it takes, and there’s an end on’t. I have little doubt Greece will be cited in just about every Establishment Clause case going forward, and no doubt at all there will be more as well, because I don’t think the lefties will give up trying to abolish religion entirely in the public sphere.

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themaskedblogger is a native born Texan, a registered voter and possessed of some minimal ability to read, write and think.

Posted in Courts, Religion
3 comments on “2013-14 Supreme Court Term, Part 4: Town of Greece vs. Galloway
  1. […] Part 5 of an occasional series on the recently completed Supreme Court Term detailing the most important cases (in my judgement, of course) and their likely impact. See Parts 1, 2, 3 and 4. […]

  2. […] the most important cases (in my judgement, of course) and their likely impact. See Parts 1, 2, 3, 4 and […]

  3. […] the most important cases (in my judgement, of course) and their likely impact. See Parts 1, 2, 3, 4,  5 and […]

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