News and Notes: SCOTUS could Eviscerate Establishment Clause
By George Kane
I’m scared. I’m really scared. I’m afraid that when the Supreme Court decides Town of Greece v. Galloway this term, it will overturn the endorsement standard of Establishment Clause jurisprudence, leaving nothing of the wall of separation between church and state but scattered rubble.
This was not regarded as a particularly important case. The Town of Greece, New York, is located just eight miles east of Rochester, and has a population just below 100,000. Since 1999, the town council has opened its meetings with a prayer. The town’s policy does not dictate the content of the prayer; but in nearly fourteen years of monthly meetings, only four of those who have presented it were not Christians.
The last time the US Supreme Court ruled on prayer at public meetings was in Marsh v. Chambers in 1983. That case decided that it was constitutional for the Nebraska legislature to open each session with a prayer from a state-employed chaplain. The Court ruled that the practice did not violate the First Amendment, and justified the decision by citing the long history of opening public and legislative meetings with prayer.
Minnesota Atheists contends that Establishment Clause violations should be adjudicated by applying the Lemon Test, according to which a government practice must have a secular purpose, must have a primary effect that neither advances nor inhibits religion, and must avoid excessive government entanglement with religion. While Lemon has never been overturned, it has been largely ignored in more recent cases.
In the 1984 case Lynch v. Donnelly, concerning a nativity scene on government-owned property, Justice Sandra Day O’Connor advanced a new standard, that government violates the Establishment Clause if a reasonable observer would conclude that the practice demonstrates government endorsement of religion.
In Town of Greece v. Galloway, the council prayer was challenged by two local residents for violating the Establishment Clause because it showed that the town was favoring Christianity. The suit lost in District Court, but won when the 2nd US Circuit Court of Appeals reversed the decision in favor of the plaintiffs. The town appealed this verdict to the Supreme Court, which granted certiorari. Hearings will begin on November 6th.
In Marsh, the prayers at the Nebraska legislature were non-sectarian and not coercive, since most visitors were in attendance only as sight-seers. In Greece, the prayers have consistently been expressly Christian and also coercive, since citizens who bring business before the town council have no alternative but to attend the opening prayer.
Why did the Court accept this case? Doing so requires the vote of four of the nine Justices. I am afraid that the conservative majority sees it as a vehicle to strike down the Endorsement Test. Last term the Roberts Court already knocked holes in Jefferson’s wall in the Arizona Christian School Tuition Organization v. Winn case, in which it ruled that being a taxpayer does not confer standing to sue government over an Establishment Clause violation. That ruling has left us in the preposterous situation that governments may flagrantly violate the First Amendment, yet there is no way to bring them to account because no one is eligible to sue them. Conservatives are calling for the Court to throw out the Endorsement Test and decide Establishment Clause cases based on a coercion test and historical practice. Of course, the history they want to count is the David Barton-filtered, mythicized Christian America, from a time when the nation was less culturally diverse, when it was scientifically illiterate, and when it had not yet been exposed to modern atheist analysis. The courts have only been reviewing Establishment Clause violations since the middle of the 20th Century. That history they want forgotten.