In the previous post in this series, I set up the problem facing the Supreme Court as it discusses the Greece case. Can the Court come up with guidelines for prayers that meet the earlier high standard of requiring strict neutrality between religions and between religion and non-religion or even the later lower standard set by the 1983 Marsh case that the prayers do not ‘proselytize, advance, or disparage’ any religion? If such guidelines can be drawn, then how can government agencies at any level see to it that they are followed without running afoul of the other constitutional requirement that the government not censor or otherwise parse the content of prayers or, even worse, dictate the content of the prayers? [Read more…]

To understand the oral arguments presented at the Supreme Court in the Greece case that I will discuss in the next post in this series, one needs to look at the reasoning of the Second Circuit Court of Appeals ruling that overturned the practice. Recall that they decided that the ‘history and tradition’ reasoning used to justify the prayers in the 1983 Marsh v. Chambers case was not appropriate for the Greece v. Galloway case and that the court should have used the Lemon test instead, as well as the endorsement test that looks at whether the practice would be seen by a reasonable informed observer to be an endorsement of religion. They proceeded to do so and found that it failed all three prongs of the Lemon test as well as the endorsement test. [Read more…]

The symposium held yesterday at the law school at my university went very well, I thought. The weather was brutal, with low temperatures and winds making it seem much colder. Combined with the snow left over from the previous night that had turned into slush and ice making walking unpleasant, to put it mildly, I wondered whether there would be many people who would venture out. I was pleasantly surprised to see that the auditorium was almost full, with students and faculty and members of the community braving the weather to come and hear about an issue that they clearly thought was important. [Read more…]

In his dissent in Marsh v. Chambers, justice William Brennan reinforced the Supreme Court’s earlier precedents that while there may be situations in which certain kinds of prayers may pass constitutional muster, it should never be the case that the government actually designs the prayers or acts as a censor to determine what prayers are allowed or not allowed. Even chief justice Warren Burger in his majority opinion said that “it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.” [Read more…]

Just a reminder for those who are in the Cleveland area that I will be part of a panel that will discuss the Greece v. Galloway case at an event that is free and open to the public. The actual title of the session is (for some obscure reason) Religion and the Constitution in Modern Life. My series of posts on this topic can be seen here. [Read more…]

In the 1983 precedent-setting case of Marsh v. Chambers that found ceremonial prayer at the opening of legislative sessions in Nebraska to be constitutional, one of the three dissenting voices was Justice William J. Brennan, himself a practicing Catholic. He argued strongly against the kind of ad hoc reasoning being advanced by chief justice Warren Burger in speaking for the majority, saying that it was clear that the court was trying to make legislative prayer into a special case purely because it did not want to overturn a long-standing practice. [Read more…]