In ruling that the prayer practices of the town of Greece were unconstitutional, the Second Circuit Court of Appeals basically said that the US Supreme Court, in its 1983 precedent-setting case Marsh v. Chambers, had used the wrong reasoning by rejecting the so-called Lemon Test and other tests for Establishment Clause violations and using instead an argument based on history and tradition. It is quite unusual for a lower court to challenge a Supreme Court precedent and the Appeals Court had to do some dancing around to justify this.

The Supreme Court Marsh opinion argued that since the very first Congress that ratified the Bill of Rights had hired a chaplain and had opened its legislative sessions with prayer, and since some members of that Congress had also been part of the process of drafting the constitution and had voted in favor of having a chaplain (and this included James Madison, a vigorous advocate of church-state separation), they must have thought that such practices were not a violation of the Establishment Clause. Marsh also pointed to the fact that this kind of prayer has a long history in both state and national legislatures and that in Nebraska, “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.” The ‘proselytize, advance, or disparage’ language was resurrected during the oral arguments in Greece as a possible measure to adjudicate if prayers are constitutional or not.

There is a catch with the Marsh reasoning though. While Establishment Clause precedents say that the government cannot ally itself with prayers that advance or disparage any particular creed, they also prevent the government from dictating the content of prayers and thus cannot also mandate that all prayers be nonsectarian or nondenominational, since by doing so it is in effect advocating a secular ‘civil religion’ or a ‘vague theism’, and that is also not allowed. So how can the government require or maintain neutrality in prayers while at the same time not take any steps to ensure neutrality by pre-approving prayers? It seems like a Catch-22 and this issue was clearly an issue that the Supreme Court justices struggled with during oral arguments in the Greece case.

In the Greece case, the Appeals Court rejected the history and tradition justification and argued that the Lemon test needed to be applied. They pointed to other and later Supreme Court Establishment Clause decisions, especially the 1989 County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter where the court, although not dealing directly with prayer, had said that “history cannot legitimate practices that demonstrate the government’s allegiance to a particular sect or creed.”

Not only was the verdict of the three judge Appeals Court panel in the Greece case unanimous, they argued that the practice of legislative prayer as displayed in this case violated all three prongs of the Lemon Test, the test that has been often used often since 1971 to adjudicate Establishment Clause cases, and also that it was an endorsement of a particular religious viewpoint, another no-no. In other words, the Appeals Court seemed to think that this was a slam-dunk case of Establishment Clause violation and were willing to take the unusual step of rejecting a US Supreme Court precedent’s reasoning even though the facts of the current case did not seem, at least on the surface, to extend beyond those of the precedent case.

To understand the Greece case, we have to not only go back to the 1983 case of Marsh v. Chambers, we have to go back even further and look at how the Establishment Clause has been interpreted since it was first ruled, in the landmark 1947 case of Everson v. Board of Education, to apply to not just Congress but to all state and local governments and their agencies. The religion clauses of the First Amendment to the US Constitution are terse: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”, with the first part being referred to as the Establishment Clause and the second as the Free Exercise clause.

Justice Hugo Black’s majority opinion in Everson has been central in the evolution of our understanding of the Establishment Clause. He said:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church-attendance or non-attendance. No tax, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or what ever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, “the clause … was intended to erect a wall of separation between church and State.” [my italics-MS]

Black set down a tough standard, saying that the state must maintain strict neutrality not just between religious sects but also between religion and non-religion. This was particularly upsetting to many religious people who felt that the standard should be lower, and that as long as the government did not actively sponsor or advance religion through concrete steps or show preference for one religion over another, then the practice should be acceptable.

The issue of how to interpret and enforce neutrality by the government in matters involving religion has been a struggle ever since, with no single measure emerging as a standard. This is partly because religious practices have encroached into every aspect of public life and disentangling them after the fact is harder than preventing new entanglements. As a result, we have seen a set of partially overlapping criteria that have been used to deal with different cases, making it hard to predict which one will emerge as the determining one in any particular case.

The Greece case is particularly illustrative of that dilemma and it may be that the justices who took it on wanted to make a sweeping ruling that cleared up some of the confusion. In the next posts, I will look at the different kinds of reasoning that have been used in Establishment Clause cases.