Justice Hugo Black’s majority opinion in Everson v. Board of Education laying out the neutrality requirement that governments needed to comply with when it came to religion (that I summarized in part 3) basically said that the government had to be strictly neutral between religious sects and also between religion and non-religion. That latter requirement has been particularly difficult to implement without requiring the government to not have anything to do with religion at all and over time we have seen a steady weakening of the resolve to implement it. [Read more…]

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. [Read more…]

Like many observers, I was puzzled by the decision of the US Supreme Court to accept the case in which in 2008 two citizens of the town of Greece in upstate New York (Susan Galloway who is Jewish and Linda Stephens who is an atheist) sued the town council for beginning its monthly meetings with a prayer. As I said in the first post in this series, there was nothing in this case that seemed to exceed the boundaries established by the precedent 1983 case of Marsh v. Chambers and since those prayers were ruled constitutional, then one would have expected these to be too. The District Court ruled in 2010 in just such a manner but in May 2012 the Second Circuit Court of Appeals surprised everyone by unanimously overruling the District Court verdict, and the US Supreme Court took up the case, hearing oral arguments in November 2013. [Read more…]

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. [Read more…]