While we wait to see who is nominated to the already tainted Supreme Court, I see that there was a reference to the action on legislative prayer today at Religion Clause Blog. Or, non-action.
And, Thomas and Gorsuch flagged the prayer issue, which now appears to be something that splits the circuits. There seems to be a decent chance that public recognition of religion in some fashion -- including something like a cross display -- will be back to the Supreme Court to clarify existing law on the matter. The Town of Greece v. Galloway opinion clarified somewhat the breadth allowed in legislative prayer,* being more open to it than a past ruling (Marsh v. Chambers) and a plurality opinion applying it seemed to offer. Justice Kagan's dissent to me put forth the best approach there, a compromise position that allowed for legislative prayer but providing some safeguards. The majority itself did this too though to some unclear degree as the dissent itself suggests.
The en banc lower court opinion blocking legislator led prayer dominated by one religion is discussed here with a link to the opinion. Justice Thomas argues history is on the local practice here, but the lower court opinion and the concurrence challenges just that. It is a common complaint (see, e.g., Eric Segall) that Thomas' "history" is wrong. Original understanding and historical practice is in general a mixed bag anyhow. Anyway, if he thinks things should turn on that, maybe the fact finding tie should go to the lower court. Of course, a split complicates things.
Thomas also argues that if anything a chaplain would be more problematic (granting either is) than a legislator. But, the lower court opinion argues (convincingly to me) that government officials directly promoting Christianity nearly 100% of the time is worse than a means where third parties of various faiths are more likely to be present. In practice, the dissent in Town of Greece argued the practice there was still not evenhanded enough though part of the problem was that it argued that Kennedy's opinion was not a realistic accounting of the actual practice there.
Justice Stevens dissented in Marsh in particular because he thought one chaplain of a specific faith was a blatant establishment, but the majority noted that in practice (after complaints) the chaplain made a good effort not to be particularly sectarian (if still theistic). There is still some limits via the controlling plurality opinion in Town of Greece so that use of prayers can be done up to a point but not too much:
Meanwhile, Judge Amy Coney Barrett is a leading choice for the Kennedy Seat. There was past -- overblown -- criticisms about how her religion was subject to scrutiny during her lower court nomination. It is not a violation of the "no religious test" rule to examine how her understanding of how to apply law in some fashion overlaps with her religious understanding. We should get a full picture of the nominee though the issue should be warily handled, even if beliefs in "handmaidens" and "heads" (woman/man) advising you is likely to be open to some ridicule.
Some evangelical friendly anti-abortion type in her 40s that can even be deemed a "feminist" choice (being a woman) is a fairly prime option. The troll opportunity alone makes me wary about her and if we are stuck with a bad candidate, on some level it is better to have an easier target. OTOH, net, if the person is confirmed, what difference will it really make? There might even be a small value in adding another woman to the Court. It would also help to know her other views though presume they are typical Federalist Society type of stuff.
We shall see who gets the rose next week.
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* This is somewhat of a misnomer, especially given the stance of the minority opinion in the most recent Supreme Court ruling. The more intimate setting of a local public board meeting and town hall more directly involves the public than many a "legislative" prayer case that involves the start of the legislative day involving basically just the legislators themselves. See, e.g., the start of the U.S. Congress or the like.
Nonetheless, the majority -- though recognizing some "fact specific" quality to these questions -- did not differentiate.
In finding the county’s former prayer unconstitutional, the appeals court’s majority focused on four elements: that the commissioners gave the prayers themselves; that 97 percent of the prayers between 2007-2013 were Christian; that the audience was urged to join in; and because of the government setting, members of the public who had business with the officials often felt pressured to take part in the prayer.Among the end of the term orders, there are usually some statements by justices on various issues, be it why they would have taken the case or why such and such is at least important enough to note. For instance, Breyer used it as an opportunity to again flag his constitutional concerns with the death penalty. A few justices [in an opinion by Gorsuch] flagged something called Skidmore deference, part of a big debate over the discretion over agency action. And, Alito/Thomas had another thing.
And, Thomas and Gorsuch flagged the prayer issue, which now appears to be something that splits the circuits. There seems to be a decent chance that public recognition of religion in some fashion -- including something like a cross display -- will be back to the Supreme Court to clarify existing law on the matter. The Town of Greece v. Galloway opinion clarified somewhat the breadth allowed in legislative prayer,* being more open to it than a past ruling (Marsh v. Chambers) and a plurality opinion applying it seemed to offer. Justice Kagan's dissent to me put forth the best approach there, a compromise position that allowed for legislative prayer but providing some safeguards. The majority itself did this too though to some unclear degree as the dissent itself suggests.
The en banc lower court opinion blocking legislator led prayer dominated by one religion is discussed here with a link to the opinion. Justice Thomas argues history is on the local practice here, but the lower court opinion and the concurrence challenges just that. It is a common complaint (see, e.g., Eric Segall) that Thomas' "history" is wrong. Original understanding and historical practice is in general a mixed bag anyhow. Anyway, if he thinks things should turn on that, maybe the fact finding tie should go to the lower court. Of course, a split complicates things.
Thomas also argues that if anything a chaplain would be more problematic (granting either is) than a legislator. But, the lower court opinion argues (convincingly to me) that government officials directly promoting Christianity nearly 100% of the time is worse than a means where third parties of various faiths are more likely to be present. In practice, the dissent in Town of Greece argued the practice there was still not evenhanded enough though part of the problem was that it argued that Kennedy's opinion was not a realistic accounting of the actual practice there.
Justice Stevens dissented in Marsh in particular because he thought one chaplain of a specific faith was a blatant establishment, but the majority noted that in practice (after complaints) the chaplain made a good effort not to be particularly sectarian (if still theistic). There is still some limits via the controlling plurality opinion in Town of Greece so that use of prayers can be done up to a point but not too much:
Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort.The plurality noted: "The analysis would be different if town board members directed the public to participate in the prayers" and this appears to be just what is at stake here. Emphasis was made that ministers were the ones who did that. Notably, Scalia and Thomas didn't join the portion of the opinion that said that. It seems like Thomas is trying to expand the reach of the opinion. With two justices changing, and other religious issues open to change, the final word is probably yet to be spoken here. For instance, the plurality references a "reasonable observer," which suggests respect for 1980s doctrine that a new Court might push back upon. One more thing. Thomas cites three residents "who were offended by the Board’s prayers," but the opening summary suggests mere "offense" was not enough.
Meanwhile, Judge Amy Coney Barrett is a leading choice for the Kennedy Seat. There was past -- overblown -- criticisms about how her religion was subject to scrutiny during her lower court nomination. It is not a violation of the "no religious test" rule to examine how her understanding of how to apply law in some fashion overlaps with her religious understanding. We should get a full picture of the nominee though the issue should be warily handled, even if beliefs in "handmaidens" and "heads" (woman/man) advising you is likely to be open to some ridicule.
Some evangelical friendly anti-abortion type in her 40s that can even be deemed a "feminist" choice (being a woman) is a fairly prime option. The troll opportunity alone makes me wary about her and if we are stuck with a bad candidate, on some level it is better to have an easier target. OTOH, net, if the person is confirmed, what difference will it really make? There might even be a small value in adding another woman to the Court. It would also help to know her other views though presume they are typical Federalist Society type of stuff.
We shall see who gets the rose next week.
---
* This is somewhat of a misnomer, especially given the stance of the minority opinion in the most recent Supreme Court ruling. The more intimate setting of a local public board meeting and town hall more directly involves the public than many a "legislative" prayer case that involves the start of the legislative day involving basically just the legislators themselves. See, e.g., the start of the U.S. Congress or the like.
Nonetheless, the majority -- though recognizing some "fact specific" quality to these questions -- did not differentiate.
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