Monday, May 20, 2013
Beware of "Town of Greece" Bearing Gifts
The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of the Second Circuit involving prayers given by guest chaplains before monthly town board meetings. Here is the SCOTUSBlog page, and here's the Second Circuit opinion by Judge Calabresi.
There has been a good deal of circuit court action involving legislative prayer, but the Supreme Court has basically not touched it since Marsh v. Chambers. Prediction is pointless, so I'll just say the following.
1) I talk about legislative prayers and similar cases in my book The Agnostic Age. I characterize the rulings in this area as "constitutional easements" over the Establishment Clause and argue that they are constitutionally problematic, at least, although I suggest that we might be better off letting sleeping dogs lie. (Andy Koppelman criticizes Marsh in similar terms in his excellent recent book, Defending American Religious Neutrality and says clearly that it should be overruled.) It would appear that the dogs are awake and hungry.
2) There is a good deal of consensus and friendship among law and religion scholars these days, at least in my view. The friendships will remain, I'm sure. But this is one case that will reveal the differences among us more starkly than many recent cases. I look forward to friendly disagreements with colleagues like Rick Garnett and Marc DeGirolami.
3) The best scholarly work in this area that I am aware of is by Christopher C. Lund. If you're interested in this case and these issues, you ought to read Chris's work. I hope we can get him over here for a timely guest stint at Prawfsblawg.
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It would be excellent if the Court were to clarify or eliminate the Endorsement test.
Posted by: AndyK | May 20, 2013 1:26:44 PM
O'Connor's endorsement test is a pretty realistic attempt to explain what actually goes on. They can "clarify" or even eliminate it if they want, but the likely result in practice will probably be somewhat the same.
Posted by: Joe | May 21, 2013 12:19:17 PM
"Congress shall make no Law respecting an establishment of religion..."
With all due respect to Justice O'Connor, here is why the"Lemon Test" is an erroneous test in regards to the establishment of a particular State religion. The Lemon Test is missing the necessary steps to pass a Law, thus why use the Lemon Test to begin with?
Posted by: Nancy | Oct 20, 2013 8:29:07 PM