Joan Biskupic (who wrote a bio of O'Connor and Scalia and last I heard is doing something about Sotomayor) wrote a piece on the legislative prayer case (the automated links aside, "Greece" is not the country, it is a town in NY). One theme was that the justices found it hard to imagine clean lines here to draw, suggesting a desire to just let the legislatures to deal with the details. This is the basic realistic stance of this analysis from a Catholic friendly blog, since the alternative (an across the board ban) is just not going to happen -- it didn't happen with the Burger Court.
As noted by the brief cited here, I don't believe it impossible to set some standards here. A comment to yesterday's post supported a straight rule that would cover "under God" or messages on coins along with the court crier asking God to save the honorable court -- or is it more a statement of opinion and appeal for agreement? It would to me be better to avoid such things and Mr. Newdow had a point. Still, there are shades of wrong, and even Scalia in the Ten Commandment cases realized "Under Jesus" would be a problem. So are legislative prayer practices that advance that.
The direct precedent here is Marsh v. Chambers, which appealed to history (unlike litigants, justices need not respect precedent, so the town's reliance on that only went over so well with the justices). If anything, that was a more problematic case since it concerned a long term chaplain of one denomination, not a system of constantly changing clergy. As noted here [they discuss the oral arguments here], however, the nature of town board meetings complicate things more than invocations in front of some legislatures (including the U.S. Congress). There is thus various ways to decide the question narrowly though that might require some willingness to police things.
Anyway, Marsh does not say historical practice is all that matters; it does say it is a strong thing to go against, especially "unambiguous and unbroken history of more than 200 years" (putting aside the dubious nature of that sentiment looking at the details ... still, as noted earlier, the town had a moment of silence policy until recently). The opinion also noted the concern of sectarian prayers, but could avoid the question, since the practice there no longer was deemed to have that character.
And, such in the case here. The town, after all, argues that the intent of the policy is inclusive. They don't want to merely invite or promote Christianity, even if the lower court held that was the ultimate effect. At the very least, the Court should reaffirm that the effort is required here, even if it requires some degree of oversight. Making sure that legislative prayers aren't just each and every day in promotion of one faith is content based policy, but it is proper here to respect the beliefs of all at the bare minimum. The prayers here are not merely speeches on the floor or the voluntary choice of a President to say "so help me God." They are the product of an established policy and current reality warrant such a rule.
Marsh can be read to not require this if there is no bad intent or "exploitation" to advance certain religions. But, at some point, the effect prong of either the Lemon or endorsement test should have some bite here. (See also, Windsor v. U.S., where the effect of DOMA, sec. 3 mattered). It is this reading of Marsh -- non-sectarian and concerns for effects that was honored a few years later in dicta, even managing to get five justices in a case that overall was split numerous ways. Problem is the dicta was directly in response to a dissent written by Kennedy.
They should have left the moment of silence in -- the change, even if the Court majority very well might not think so, seems to me a means to "exploit" a chance to advance a certain view of religion, the one not honored by Jesus -- he suggested praying in private. Then, he wasn't big on oaths either, so like selective citation of a few unclear comments about homosexual behavior, that just is more of the same really.
At any rate, if we will have certain minimal establishments, they should be cabined.* The alternative is, e.g., some locality not allowing Wiccans to give an invocation, or (as the ACLU brief noted), thinking better of inviting imans or other unpopular types. Even if the rules seem equal.
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* Something like this came to mind while watching Pan Am -- a stewardess did something distasteful as a CYA move and another let her know her actions were known and not supported. This made her feel somewhat guilty, which is only a limited restraint, but one all the same.
As noted by the brief cited here, I don't believe it impossible to set some standards here. A comment to yesterday's post supported a straight rule that would cover "under God" or messages on coins along with the court crier asking God to save the honorable court -- or is it more a statement of opinion and appeal for agreement? It would to me be better to avoid such things and Mr. Newdow had a point. Still, there are shades of wrong, and even Scalia in the Ten Commandment cases realized "Under Jesus" would be a problem. So are legislative prayer practices that advance that.
The direct precedent here is Marsh v. Chambers, which appealed to history (unlike litigants, justices need not respect precedent, so the town's reliance on that only went over so well with the justices). If anything, that was a more problematic case since it concerned a long term chaplain of one denomination, not a system of constantly changing clergy. As noted here [they discuss the oral arguments here], however, the nature of town board meetings complicate things more than invocations in front of some legislatures (including the U.S. Congress). There is thus various ways to decide the question narrowly though that might require some willingness to police things.
Anyway, Marsh does not say historical practice is all that matters; it does say it is a strong thing to go against, especially "unambiguous and unbroken history of more than 200 years" (putting aside the dubious nature of that sentiment looking at the details ... still, as noted earlier, the town had a moment of silence policy until recently). The opinion also noted the concern of sectarian prayers, but could avoid the question, since the practice there no longer was deemed to have that character.
The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.Some lower courts have required the prayers to be non-sectarian and this is what a leading expert on religious freedom, Douglas Laycock, argued in support of the challengers here. And, this is what got negative pushback, since it was unclear to various justices what that would mean. But, again, even Scalia noted "discriminating against other religions" and "publicly honoring God" are different for First Amendment purposes. As suggested by the majority in that very case, even honoring God is a religious act that can be problematic when it obtains the endorsement of the state. Nonetheless, in for the calf, does not mean we need to be in for the cow, even if being vegan is best overall.
And, such in the case here. The town, after all, argues that the intent of the policy is inclusive. They don't want to merely invite or promote Christianity, even if the lower court held that was the ultimate effect. At the very least, the Court should reaffirm that the effort is required here, even if it requires some degree of oversight. Making sure that legislative prayers aren't just each and every day in promotion of one faith is content based policy, but it is proper here to respect the beliefs of all at the bare minimum. The prayers here are not merely speeches on the floor or the voluntary choice of a President to say "so help me God." They are the product of an established policy and current reality warrant such a rule.
Marsh can be read to not require this if there is no bad intent or "exploitation" to advance certain religions. But, at some point, the effect prong of either the Lemon or endorsement test should have some bite here. (See also, Windsor v. U.S., where the effect of DOMA, sec. 3 mattered). It is this reading of Marsh -- non-sectarian and concerns for effects that was honored a few years later in dicta, even managing to get five justices in a case that overall was split numerous ways. Problem is the dicta was directly in response to a dissent written by Kennedy.
They should have left the moment of silence in -- the change, even if the Court majority very well might not think so, seems to me a means to "exploit" a chance to advance a certain view of religion, the one not honored by Jesus -- he suggested praying in private. Then, he wasn't big on oaths either, so like selective citation of a few unclear comments about homosexual behavior, that just is more of the same really.
At any rate, if we will have certain minimal establishments, they should be cabined.* The alternative is, e.g., some locality not allowing Wiccans to give an invocation, or (as the ACLU brief noted), thinking better of inviting imans or other unpopular types. Even if the rules seem equal.
---
* Something like this came to mind while watching Pan Am -- a stewardess did something distasteful as a CYA move and another let her know her actions were known and not supported. This made her feel somewhat guilty, which is only a limited restraint, but one all the same.
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Thanks for your .02!