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SCOTUS is so not busy these days that SCOTUSBlog is not keeping up with their morning briefings. But, there was a final summer order day today though there was the usual nothing much there. There were two denials not related to rehearings and attorney discipline. But, nothing on immigration or anything people are really paying attention to these days. A bit more of note, perhaps, is that there have been various noises that suggest there very well might be a decent chance of a Justice Garland.
Like people who believe in God, the plaintiffs have strong belief systems about what is right and wrong and how they should live their lives. Like believers in theistic faiths, the plaintiffs meet in groups to discuss and act upon their beliefs, read and study seminal texts about their belief systems, follow leading authors of such texts, celebrate special days of the year on which they observe their beliefs, and provide volunteer services to their communities based on their beliefs. Like theists, the plaintiffs are capable of giving inspiring and moving invocations, similar to nontheistic invocations that have been given in other communities across the United States.
Over the years, I have expressed a broad view of "religion" and of "religious" freedom, which would cover more ground. The above is from a lawsuit from atheists blocked in Pennsylvania from giving invocations. (There are various complaints, but a basic concern is not allowing a non-theistic guest chaplain surrogate to give invocations.) And, it is true that groups like ethical culture groups (who since the 1950s have been treated like "religions" for tax purposes etc.) look quite like those that the average person would deem religious. A true respect of the diversity of religious belief in our society would entail including this group as well.
Bottom line, though the lawyer for the challengers in the last legislative prayer case (Town of Greece v. Galloway) was confused about it during oral argument (truly a joke performance there), there is a way to have invocations that are evenhandedly done to include non-theists. The concern there was that the New York locality in question in practice unconstitutionally favored certain faiths. The reply was that there was no way to truly be inclusive, to including non-theists too, since the nature of prayer would entail some reference to God etc. There are a range of "beliefs" out there and this includes those who do not believe in supernatural beings or forces.
And, many localities managed to realize this and welcome non-theistic speakers to provide invocations. The policy here involves chaplains from a "regularly established church or religious organization or shall be a member of the House," which is a type of establishment. What power does a state have to favor "regular" religious churches or organizations? There very well might be a member of the House here that is either someone who shares the beliefs of the plaintiffs or would be open to providing such an invocation. But, the overall effect is still discriminatory.
Anyway, the lawsuit argues that guest chaplains are regularly allowed and providing a non-theist a chance to provide an invocation would be an evenhanded application that respects religious diversity in an equal fashion. OTOH, if you want to endorse specific religions, that might not work. We see some of this in the ongoing controversy in France over "burkinis," a sort of swimwear favored by Muslims (but not just them). [Further reading: What is Veiling? covers this.] As some note, why aren't nuns being targeted here? Canada provides the appropriate alternative model by welcoming hijabs for Mounties. A court ruling in France did insert some sanity.
Some have argued we spend too much time on the U.S. Supreme Court while law and constitutional issues in general develops in other venues. Sure enough.