by William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
There are myriad critiques that one might level at the Town of Greece v. Galloway decision—its lack of concern for messages of exclusion and the protection of minority religious rights being at the top of the list. But lack of predictability is not one of them.
My guess is that not many people were ultimately surprised by the decision. Most everybody expected that the Court was not going to use the case to significantly alter existing Establishment Clause doctrine. Most everybody predicted that the Court’s decision would likely be 5-4 and that Justice Kennedy would cast the deciding vote. And most everybody agreed that because the decision would rest with Justice Kennedy, the Court’s opinion would be indecipherable no matter which way he sided. The oracles were three for three.
Let’s begin with prediction one. That the Court might overturn Marsh v. Chambers, the 1983 decision upholding legislative prayer was never really much of a possibility. The plaintiffs themselves argued only that the Town of Greece’s prayer practice should be modified to be less sectarian and more inclusionary and even Justice Kagan’s dissent did not call for invalidating all legislative prayer.
Nor was it likely from the other side that the Court would overrule precedents limiting government sponsored prayer in more controversial settings such as public classrooms and public school graduation ceremonies. Justice Kennedy, after all, was the author of Lee v. Weisman, the decision that specifically invalidated convocation prayer.
Yesterday, the Supreme Court ruled 5-4 in Town of Greece v. Galloway that the First Amendment was not violated when monthly board meetings in Greece, New York were opened with a Christian prayer. In dissent, Justice Elena Kagan wrote that the ruling would “strike a heavy blow against the nation’s tradition of religious pluralism, and will lead to prayers that will actively promote a single faith’s religious values.” At The Daily Beast, Geoffrey R. Stone, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, breaks down the decision. At The Atlantic, Garrett Epps reveals how the court’s decision “shows how far the ground has shifted under the Establishment Clause in the last 30 years” while Dahlia Lithwick at Slate prepares her readers to “get ready for a lot more Jesus in your life.”
In the wake of Oklahoma’s botched execution of Clayton D. Lockett, the White House “has commissioned yet another study of lethal injections.” Writing for The Atlantic, Andrew Cohen explains why President Obama “would be better off lobbying the Supreme Court and Congress to make changes.”
At The New York Times, Adam Liptak reports on a new study which reveals that Justice Antonin Scalia “voted to uphold the free speech rights of conservative speakers at more than triple the rate of liberal ones” while David S. Joachim reports on the “pivotal” Republican primaries in North Carolina, Georgia, and Kentucky and what they could mean for the 2014 midterm elections.
At Womenstake, Michelle Banker comments on a Guttmacher Institute study which shows that “more bills to protect access to abortion have been introduced thus far in 2014 than had been introduced in any year for the past 25 years.”
* Americans United represented the plaintiffs in Town of Greece, with Legal Director Ayesha N. Khan serving as lead counsel.
This morning, by a 5-4 vote in Town of Greece v. Galloway, the Supreme Court upheld a town council’s practice of opening its meetings with predominantly Christian prayers.
It did not matter to the Court’s majority that approximately two-thirds of the opening prayers had expressly Christian references, such as “Jesus,” “Christ” and “Your Son.”
Nor did it matter to the majority that the ministers who gave the prayers typically directed them toward the citizens attending the prayers, often asking them to participate.
Nor did it make a difference that the prayers took place in a small council chamber, often attended by less than a dozen town residents who would have to plead requests for permits and variances to council members who could easily see whether the residents took part in the prayers.
The principal ground for this ruling was the majority’s conclusion that such prayer practices were common in 1789, when Congress approved the First Amendment.
The majority paid no heed to how drastically American society has changed in the two-and-a-quarter centuries that have passed since then. We are no longer a nation where nearly everyone professes to be a Christian. More and more of us identify as atheists and agnostics, Jews and Muslims, Buddhists and Wiccans, or members of a litany of other faiths.
by James C. Nelson, Justice, Montana Supreme Court (Retired)
Congress has proclaimed that the first Thursday in May—May 1, this year—is set aside as a National Day of Prayer. There will be a National Prayer Breakfast and similar state celebrations conspicuously attended by elected officials, politicians and sectarian persona.
But should Congress and state officials be promoting prayer at all? According to the Constitution, no!
The First Amendment guarantees two things: (1) that Congress will not prohibit the free exercise of religion; and (2) that Congress will make no law respecting an establishment of religion. These two clauses embody the wall separating church and state—a wall that is supposed to keep government out of religion, period.
Why, then, did Congress create in 1952, and then codify in 1988, a “national” day of prayer? If you answered, “True to the intentions of the Constitution’s framers, America is a Christian nation,” you’d be wrong. Indeed, creating any kind of a religious nation, Christian or otherwise, is exactly what the framers were trying to avoid when they drafted the First Amendment. And for good reason.
Writing for Verdict, Michael C. Dorf compares last week’s decision in McCutcheon v. Federal Election Commission with the political philosophy of fictional House of Cards majority whip Francis Underwood to reveal “a Court with an utterly benighted view of politics.” At CAC’s Text & History Blog, Brianne Gorod notes how Chief Justice John Roberts’ ruling in McCutcheon is inconsistent with his stated beliefs as a judge on the U. S. Court of Appeals for the D.C. Circuit.
While the Affordable Care Act remains “too entrenched, among consumers and providers, either to fail on its own or be dispatched by legislative ‘repeal,’” its opponents continue to resist the law, bringing lawsuits that could “wreak havoc beyond the exchanges.” Writing for The New Republic, Simon Lazarus explains what needs to be done to counter these challenges.
The Obama administration continues to face criticism for its deportation of immigrants living in the country illegally. Ginger Thompson and Sarah Cohen of The New York Times reveal how an “examination of the administration’s record shows how the disconnect evolved between the president’s stated goal of blunting what he called the harsh edge of immigration enforcement and the reality that has played out.”
On Monday, the Supreme Court decided not to grant certiorari in a case asking whether a business can “refuse to serve gay and lesbian customers.” Lyle Denniston at SCOTUSblog breaks down Elane Photography v. Willock and other orders from the high court.
Andrew Cohen at The Atlantic reviews former Supreme Court Justice John Paul Stevens’ Six Amendments: How and Why We Should Change the Constitution, and highlights the justice’s change of heart on the constitutionality of capital punishment.