This column by ACRU Senior Legal Analyst Ken Klukowski was published November 5, 2013 on Breitbart.com.
When does the Constitution not allow religious speech or displays in the public square or at public events?
This week, the Supreme Court will hear a case on prayer at legislative events, but the actual arguments presented to the justices could apply to every aspect of American life where religious faith intersects public places and events.
This Wednesday, Nov. 6, the Supreme Court will hear arguments in Town of Greece v. Galloway. Congress, states, and local governments nationwide open their meetings with an invocation. The Supreme Court calls this tradition “legislative prayer.”
Greece is a mid-sized town in upstate New York that begins its meetings with a legislative prayer. All houses of worship in town are invited to volunteer, and since some people do not belong to a recognized religion or house of worship, the town also has a policy of allowing any town resident to volunteer.
Over time, prayers have been offered by a Jewish man, a Ba’hai follower, a Wiccan priestess (i.e., a witch, who prayed to Apollo and Athena), and even an atheist signed up–though he spared everyone an awkward moment by withdrawing before he “prayed.”
Nonetheless, two town residents–Susan Galloway and Linda Stephens–sued in federal court, arguing these prayers violate the provision in the First Amendment called the Establishment Clause, which forbids the government from establishing an official national religion.
Thirty years ago, atheist politician Ernest Chambers from Nebraska likewise brought a lawsuit against prayers in the state legislature as an Establishment Clause violation. The Supreme Court upheld legislative prayer in the 1983 case Marsh v. Chambers, noting that the very same week the First Congress wrote the Bill of Rights–including the First Amendment and its Establishment Clause–it also passed a law creating the offices of House Chaplain and Senate Chaplain, whose duties would include offering legislative prayers every day Congress is in session. Thus, the Court held that legislative prayers are constitutional so long as the prayer opportunity was not being exploited to proselytize one faith or condemn other faiths and, further, that federal judges should not parse the content of prayers.
In doing so, the Supreme Court refused to apply its normal standard, which scholars on both sides of the legal spectrum acknowledge to be a train wreck of a legal test the Court devised to determine when the Establishment Clause is violated, called the Lemon test (from the 1971 case Lemon v. Kurtzman). Through the years, the Court has tried to make the Lemon test work, most notably revising it in 1989 into the “endorsement test”–that the Establishment Clause is violated when government action touching religion could lead some imagined “reasonable observer” to feel that government is endorsing religion.
The Court’s Allegheny case in 1989–where it adopted the endorsement test–shows how unworkable it is. That case involved a nativity display in a Pittsburgh courthouse and a menorah outside the courthouse. Three justices voted to strike down both displays as an endorsement of religion. Two justices said the nativity display had to go because it endorses Christianity, but the menorah could stay because somehow it does not endorse Judaism. And four justices said that both displays were okay because the Establishment Clause cares about whether someone is being forced into a religious act, not whether someone subjectively feels government is endorsing anything.
Justice Anthony Kennedy wrote the dissent for those four justices, arguing instead for the coercion test. And Kennedy is now the swing vote on the Supreme Court. For a nativity display, so long as no one is making you pray to it, bow before it, or put money in a box beside it, the Establishment Clause is not violated, and the display can stay.
Although Marsh resolved the issue of legislative prayer for many years, since 2004 a couple federal appeals courts have brought the endorsement test back into play, saying that prayers are unconstitutional if a listener could conclude government is endorsing religion.
The town is represented by the Alliance Defending Freedom (ADF) and prevailed in the federal trial court. However, the U.S. Court of Appeals for the Second Circuit reversed, using this endorsement test that the Supreme Court does not use for legislative prayer.
At that point, ADF recruited Supreme Court heavyweight Thomas Hungar of Gibson Dunn & Crutcher to become lead counsel and petitioned the Supreme Court for review (disclosure: I filed a brief for Members of Congress supporting this petition). The Court took the case.
Hungar and ADF argue that this case could be resolved on Marsh, if the Court merely takes notice of the fact that there was no proselytizing (i.e., asking your audience to convert to your religion) or threatening damnation to unbelievers. Therefore, the Court could reaffirm the 1983 test and side with the town.
If the Court does that, this will be a major religious liberty case. And even the Obama administration took that position, with Solicitor General Donald Verrilli filing a brief supporting the town.
But the Supreme Court could also take this case as a good opportunity to reconsider this whole concept of an endorsement test, which has no basis in American law or history, and was merely an attempt to save the Court’s 1971 Lemon test. The endorsement test has proven to be the same unmitigated failure that led the Court to revise its earlier standard in the first place, and it is routinely used as a sledge hammer to demolish longstanding expressions and faith-based displays (another disclosure: I filed a second brief for Members of Congress supporting this argument).
So in their brief, Hungar and ADF ask the Supreme Court to overrule the Lemon/endorsement test and replace it with the Establishment Clause’s original meaning, which the Court used for almost 200 years. That would be the coercion test; government cannot coerce any person to engage in a religion in violation of that person’s conscience or otherwise officially adopt a national religion.
The Establishment Clause was designed to prevent an established religion like England’s. The king or queen, as head of state, is head of the national church and appoints the bishops of the church. The national government adopts detailed statements of faith, licenses those who teach religion, and creates national taxes to build churches and pay the salaries of clergy. John Bunyan wrote his bestselling classic The Pilgrim’s Progress during his years in prison in Britain when he was jailed for preaching without a government license.
That is what coercion and official establishment look like. Over the past 40 years, the Supreme Court has reinvented the Establishment Clause through the Lemon and endorsement tests to suggest instead that the Constitution was designed to create a secular society where people and ideas of faith are not welcome on equal terms.
The Constitution does not demand this secular culture. It instead leaves the American people free to rule themselves through their state and local leaders as to what sort of community they want. Communities with strong faith may want Christmas displays or opening prayers, while others may not.
The Constitution allows people to rule themselves. If public officials don’t reflect the people’s wishes, whether on politics, economics, or allowing religious expression, the people can replace them with new public servants. The Establishment Clause does not allow a small number of dissenters to defeat democracy with a second bite at the electoral apple, unless someone is being coerced or the government is officially creating a full-fledged religion.
Will the Supreme Court reaffirm its rule on legislative prayer, or will it take the opportunity to correct a longstanding error on the meaning of a key part of the First Amendment? That is what the Supreme Court must consider this week.
Breitbart News will file a follow-up report after Wednesday’s arguments, and a decision is expected by July 2014.