The Greece v Galloway case dealing with whether what kind of prayer, or any kind of prayer at all, is allowable at official government functions, such as at the beginning of the sessions of legislatures and other governmental bodies, brings to the fore the thorny problem of how to interpret the Establishment Clause of the US constitution in this particular context. I have been asked to be on a panel at the Law School of my university later this month that will deal with this case (and at which one of the plaintiffs challenging the practice will also appear) and so I decided that it might be helpful to write up the issues that the Supreme Court will be grappling with before it issues its opinion later this spring.

Usually it is only the US Supreme Court that interprets the constitution and lower courts are expected to apply the guidelines set by prior Supreme Court decisions. Of course, things are never that simple. If novel constitutional issues arise where there are no clear and binding Supreme Court precedents, local courts have to make a determination as best as they can using whatever precedents they think are the most relevant, and this may take them into new areas of constitutional interpretation. Lower court rulings are strictly binding only on the jurisdictions over which that particular court has sway, but careful and well-thought out decisions that examine the issues closely may be quite influential in determining outcomes for similar cases in other jurisdictions, sparing them from having to do their own detailed analyses.

This was the case for example in Kitzmiller v. Dover, adjudicated in a federal District Court in Pennsylvania in 2005, that has been hugely influential in persuading school districts around the country to oppose the introduction of intelligent design ideas into their science curriculum because the judge, after a thorough analysis, ruled that intelligent design is essentially a religious idea and introducing into the science curriculum in public schools violates the Establishment Clause of the US constitution.

The Supreme Court will agree to take on a case if they think the issue is significant enough to require a nationally binding ruling or if different lower courts have arrived at conflicting positions resulting in confusion or if the facts of the new case seem to stretch the boundaries of prior cases, requiring a refinement to the interpretation of the constitution. It was for the lack of such reasons that I, like many observers, was puzzled by the decision of the US Supreme Court to accept the Greece case because the facts of the case seemed to be covered by a fairly clear Supreme Court precedent in the 1983 case of Marsh v. Chambers.

The facts in that earlier Marsh case were that since 1965, the Nebraska state legislature had had a Presbyterian minister as a single official chaplain on its payroll and paid for out of state funds. He would offer a prayer at the beginning of each day’s session and all his prayers were in the Judeo-Christian tradition. Those prayers would be periodically collected and published in book form, again paid for by the state.

In 1979, Ernest Chambers, a member of the Nebraska legislature, sued to stop the practice. The District Court ruled that while the prayers were constitutional, paying for the chaplain and the prayer books were not. The Eighth Circuit Court of Appeals ruled unanimously that everything, including the prayers, were unconstitutional. But in 1983, by a 6-3 majority, the Supreme Court completely reversed the Appeals Court verdict and ruled that the Nebraska practice in its entirety did not violate the Establishment Clause. This case became seen as the precedent to be used in adjudicating cases involving ceremonial prayer at government functions.

Now take a look at the facts of the recent Greece case. Before 1999, the town council of Greece had started meetings with a moment of silence. But from 1999 to 2007, meetings started with prayers and all prayers were given by Christian clergy from the area. After Susan Galloway and Linda Stephens filed their suit in 2008 saying that the prayer practice was sectarian and that the town’s procedure for selecting prayer-givers preferred Christianity over other faiths, the town broadened its participating clergy and included a Wiccan, a Baha’i, and two Jewish prayer leaders. However that was just for that year and from 2009 onwards until the record for the case was closed in 2010, only Christians gave the prayers again.

When you compare the current Greece case with earlier Marsh one, we see that the Greece practices were less extreme than Marsh in almost all respects. In Marsh there was a single official chaplain from one denomination who did it for 16 years. In Greece, there was no official chaplain and the prayer givers were rotated and even included non-Christians, even if it was only after the practice was challenged. In Marsh the chaplain was paid out of state funds and the prayers were collected and published at state expense. In Greece the prayer givers were not paid by the state nor were the prayers distributed at government expense.

On the surface, then, if the practices in Marsh were constitutional, then surely those in Greece were also constitutional? So this raises the first question: How, in the case of Greece, did the Second Circuit Court of Appeals, in the face of the seemingly clear Marsh precedent, find it possible to rule unanimously that the Greece prayers were unconstitutional? What did they find that was new?

And arising from that decision, we need to look at the second puzzling question which is why the US Supreme Court decided to take this case up for full review with oral arguments,

As many observers have pointed out, it is unlikely that the Supreme Court took it just to affirm the lower court’s decision. They are likely seeking to overrule it. But if they felt that the Appeals Court had simply made a mistake, they could have summarily reversed the decision and sent it back to the lower courts with instructions to rule according to Marsh. The fact that four justices chose to do a full review raises the question of what it was that they found intriguing about the case. The nature of the questioning in the oral arguments held on November 6 also suggests that they were not seeking to simply reverse the lower court but were looking to make a broader ruling regarding the Establishment Clause and perhaps even revisit the Marsh precedent. So what were they dissatisfied about and what are they seeking to do?

It is because of these puzzles that I think that the Greece case may be more significant than originally thought and so I will be doing a series of posts on it, so brace your yourselves for a trip through the history of the Establishment Clause and church-state separation issues.