As we wait for the Supreme Court to hand down what could become landmark decisions on civil rights (Shelby County v. Holder), affirmative action (Fisher v. University of Texas) and gay rights (Hollingsworth v. Perry and United States v. Windsor), media coverage leaves me feeling there might have been something missing in the Court’s already loaded docket for this term: religion.
Luckily this problem might be remedied for the Court’s next term, as the justices this week granted cert in a case concerning the 1st Amendment’s Establishment Clause. The case, Town of Greece v. Galloway, deals with a small town outside of Rochester that has opened all of its public town board meetings with prayers from a designated “chaplain of the month” since 1999. The biggest question here is, “Does such an action by the local government violate the Establishment Clause?”
The most relevant case the Court might look at here is Marsh v. Chambers, a 1983 decision that upheld the Nebraska state government’s practice of opening legislative sessions with a prayer from a paid Presbyterian minister. In a 6-3 decision, Chief Justice Burger abandoned a 1st Amendment test the Court developed in Lemon v. Kurtzman 12 years earlier (a test that Burger helped formulate, mind you), and instead justified the chaplaincy practice based on historical custom that had become “part of the fabric of our society.” Even the First Continental Congress began its session with a prayer, so the Court considered this practice constitutionally benign.
However, times change, and so does the Court. Since then, Establishment Clause cases have proven a muddle. You can’t display a nativity crèche on public property on its own at Christmastime (Alleghney v. ACLU, 1989), but you can display it when it’s next to Santa Claus and other Christmas decorations (Lynch v. Donnelly, 1984). Kentucky cannot post the 10 Commandments in front of its courthouses in a blatant endorsement of the Christian faith (McCreary County v. ACLU, 2005), but Texas can show them on its capitol building as a nod to their historical significance in the development of law (Van Orden v. Perry, 2005). Interestingly enough, those latter two cases were even handed down on the exact same day, with the now-retired David Souter acting as “swing vote.”
If the Court splits down the middle ideologically, Anthony Kennedy will once again probably control the outcome. He had no problem with the 10 Commandments displays in both Van Orden and McCreary, but in other important cases like Lee v. Weisman and Santa Fe v. Doe (both dealing with prayer in schools), he has joined the Court’s more left-leaning cohorts.
There’s also another complication here: the Court could duck this issue entirely. In a 2004 case called Elk Grove Unified School District v. Newdow, a unanimous court heard a case about the constitutionality of the words “Under God” in the pledge of allegiance, and dismissed the case entirely for want of standing (you could imagine the rancor on both sides of the spectrum if they had decided this case on its merits). Moreover, in especially contentious cases, this use of technical barriers has proven an excellent way for the more conservative members of the court to effect an outcome in line with their beliefs without actually saying anything overly controversial in an opinion (take a look at Hein v. Freedom from Religion Foundation.)
Regardless of how this case plays out, it will prove worth watching next term, as it will offer more evidence for how the Roberts Court will continue to treat Establishment Clause cases further down the road.