The Supreme Court Agreed To Hear A Case Today That Will Probably Nuke Separation Of Church And State

[appleannie1]

Eight years ago, in an opinion warning of the “violent consequences of the assumption of religious authority by government,” retired Justice Sandra Day O’Connor offered a challenge to her fellow conservative justices eager to weaken the wall of separation between church and state: “[t]hose who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

Today, there are five justices on the Supreme Court who would trade a system that has served us so well for one that has served others so poorly. And they just announced that they will hear a case that gives them the opportunity to make this swap a reality.

The case the Court agreed to hear today, Town of Greece v. Galloway, is likely to change that. The ostensible issue before the Court is whether a municipal legislature violated the Constitution’s ban on separation of church and state when it began its meetings with overtly Christian prayers roughly two-thirds of the time. Yet the case also explicitly tees up the question of whether a government “endorsement” of religion of the kind rejected by O’Connor is permitted under the Constitution. If you’re placing bets, the odds are overwhelming that five conservative justices will say that such an endorsement is permitted.

http://thinkprogress.org/justice/2013/05/20/2037441/the-supreme-court-agreed-to-hear-a-case-today-that-will-probably-nuke-separation-of-church-and-state/

[defacto7]

1. Was this particular fight worth it?

Should this have been fought to the SCOTUS with so much at stake? If the separation goes down, It is the last straw that breaks the back of the constitution and the founders intent and foresight for our nation. We would finally have to admit that the USA has been abolished, and abolished by ignorance and greed.

[Nye Bevan]

2. "Congress shall make no law respecting the establishment of religion".....

Does opening a town meeting with a prayer really violate this?

[Logical]

3. Yes, prayer is based on religion! They are promoting religion. n-t

[Kablooie]

7. But Congress did not make a law regarding prayer.

If someone wants lead a prayer since praying is not the law people are free to ignore it.

I believe in the separation but I'm trying to interpret the specific clause in the constitution.

[Laelth]

27. The 1st Amendment has been "incorporated."

That means it applies to the states and all municipal corporations created by the state, including cities and counties. If this is a government entity, of any kind, the 1st Amendment applies, and no official resolution adopting prayer needs to be passed in order to find that the government (de facto - in fact, as opposed to de jure - by law) violated the 1st Amendment. In this case, opening a government function with a prayer is a de facto violation of the 1st Amendment, even if the prayer was not authorized by any, specific law.

Hope that explains the matter sufficiently. I will be glad to add more if that might be helpful.

-Laelth

[Kablooie]

42. I haven't looked into SCOTUS decisions relating to this...

but once I did try to follow the logic pertaining to the right to privacy.
It was exceedingly complex, referring to several amendments, penumbas and other legal obscurities. It seemed to be a contortionist act to me and I couldn't fully follow the complexity of it but it showed my how deep SCOTUS analysis of the Constitution can be.

On the other hand the interpretation of the second amendment seem surprisingly simpleminded. It doesn't consider any other clauses of the Constitution and even ignores the first clause of the same amendment.

[loyalsister]

5. I don't think so

Our state General Assembly does it. No one is required to participate. It's wasn't worth the fight.

[Laelth]

29. It may still be unconstitutional.

After all, everything is legal until somebody complains about it. Perhaps nobody has yet brought a complaint against your General Assembly for a practice that, almost certainly, is unconstitutional.



-Laelth

[loyalsister]

43. I really don't think it is

People have complained but haven't bring legal suit. There have been Muslims and Jewish people in the GA who have brought it up and been ignored. Nothing requires them to be there at the time of the prayer. If they were legally required to be a part of it, it would be one thing. But they aren't and it is not a part of their work requirements.
It's a stupid hill to die on.

[Laelth]

44. As a Georgia resident, you'll note that I haven't challenged it.

I don't want to die on that hill either ... but I still think it's unconstitutional. It's just not a battle that I am willing to fight in Georgia.

-Laelth

[Laelth]

9. Unless there's a prayer to every God of every American ...

... and unless there's also a "moment of silence" (or some such nonsense) for all the atheists in the U.S., then yes ... opening a meeting of a government body with a prayer is, in fact, a violation of the separation of church and state and a threat to the establishment clause of the 1st Amendment to the Constitution.

Or, so I would argue. Why not just keep all religion out of public functions? That prayer wasn't really needed was it? Isn't our Constitution more valuable?

-Laelth

[cali]

13. I wish people wouldn't post the text of an amendment or part of the Constitution

as if that was the be all and end all. It is so obviously not. How the Constitution has been interpreted over the years is what is at issue.

Opening a town meeting with a prayer, particularly one that makes it clear that a specific religion is being invoked, is what is at issue. Is the government endorsing a particular religion when it does so?

[oldhippie]

14. "Congress shall make no law..."

Seems pretty clear to me. I don't need any interpretation. I can read and understand English.

[cali]

16. but that's simply not the way it works. The Constitution is interpreted by the Supreme Court

whether it seems clear to you or not.

[oldhippie]

22. Well, duh, I know that .....

.... but in my opinion it is not necessary in this instance. I do have the right to an opinion, yes?

[treestar]

40. There is also the 14th Amendment

Which takes in the states and lesser governments. They too shall make no law establishing a religion.

[Nye Bevan]

23. And they could decide to interpret the First Amendment more literally,

to mean that Congress cannot set up an official national religion in the mold of the Church of England (which is probably what the Founding Fathers were thinking of at the time).

Not saying they will, but they could.

[cali]

32. no, not in the real world.

lots of things could happen. We don't discuss them because the odds are vanishingly small that they will happen- as is the case here.

[Nye Bevan]

34. And lots of people thought that a sweeping decision like Citizens United would not happen.

With that in mind, your faith that the SCOTUS will not make a decision that you don't like in this case is somewhat touching.

[Sgent]

37. Yes...

but this ammendment is more recent (14th):

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The supreme court holds that this applies the bill of rights to all governments. So the "congress" in the first line should now be replaced with "congress, state legislatures, or creations of the same".

[oldhippie]

41. Well, not totally (Google Incorporation) ...

But, in any case, who passed a law respecting the establishment of a religion?

[Nye Bevan]

15. If the Constitution read "Government may not endorse any religion"

then that would obviously be a valid point.

[cali]

17. not too familiar with the SCOTUS history on this, are you?

[Nye Bevan]

20. SCOTUS is free to ignore history and is not bound by precedent.

For example, I remember when there was a "SCOTUS history" of campaign finance laws being upheld. How did that end up?

[morningfog]

19. Uh the establishment clause does just that.

[Nye Bevan]

21. No. It says that Congress shall make no law respecting the establishment of religion (nt)

[Sgent]

38. Read

the 14th amendment, pay special attention to section 1 and its implications for the first amendment (and other bill of rights).

[morningfog]

18. Yes. This is an easy question, and I think SCOTUS will

get it right.

[treestar]

39. Not that much

It does not make any religious established and required by the state. So there is a lot of hyperbole in some of these posts.

OTOH, it certainly hints to people of other religions that they are somewhat excluded. Yet they would not legally be excludable from the meeting and its functions.

I have to wonder at the praying people. Do they not realize that they may not always be in the majority? They seem to think they don't need the protection of the First Amendment and never will.

[mindwalker_i]

4. Cool, then we can all start opening meetings

with prayers to the Flying Spaghetti Monster!

Ramen

[Puzzledtraveller]

28. Why not, right?

I'm onboard.

[davidn3600]

6. I though this was has been already ruled on in Marsh vs Chambers

In 1983, Marsh vs Chambers, the Supreme Court ruled that congress opening up with a prayer with a chaplain does not violate the establishment clause.

Even the Supreme Court starts with the saying, "God save the United States and this Honorable Court,"

[Laelth]

11. Perhaps, and to many of us this is abhorrent.

I hope the SCOTUS reverses course on this line of cases.

Of course, given the current make-up of the SCOTUS, I doubt they will.

-Laelth

[Nye Bevan]

35. SCOTUS is completely free to ignore history and precedent (nt)

[Laelth]

8. The comments following this discussion are informative.

No matter what the SCOTUS does with this case, it is very clear that most Americans oppose the institution of a state religion, and most of them recognize that prayer in a public, state-sponsored forum is, in fact, a form of state-sponsored religious practice.

-Laelth

[Fumesucker]

10. I would word that a little differently

Americans cannot agree on which religion to make the official state one.

I wonder if the Supremes are confident enough to go ahead and pull this trigger?

There's something to be said for knowing where you stand.

[warrior1]

12. If they change things

then churches will have to start paying taxes.

[dems_rightnow]

25. You can forget that one

Churches are never going to start paying taxes.

[LAGC]

24. Kennedy isn't in the bag.

This could easily go 5-4 our way, I'm not throwing in the towel just yet.

If you haven't already, donate to Americans United: http://www.au.org/

[former9thward]

26. I don't understand these cases.

Congress opens with a prayer every day it is in session. So does the Supreme court. Nobody complains about that -- at least legally -- so how is a prayer in at some town meeting unconstitutional?

[LAGC]

30. The issue is whether the prayer is particularly sectarian or not.

A generic "thanks be to God" prayer is going to be looked at differently than "Believe in Jesus, he's the only path to Salvation, or you're going to Hell!" tirade.

Really though, if the government were to be all-inclusive, they wouldn't be favoring believers over non-believers by invoking the Almighty.

I would think a moment (or minute) of silence would be more appropriate in all circumstances, if absolutely necessary at all.

[Puzzledtraveller]

31. It seems like this has been argued before doesn't it?

It's like how it is easier to argue against the Ten Commandments being engraved on a government building or otherwise posted or erected than the speech of government officials. I think nothing will change here, it will be upheld as speech.

[Laelth]

33. I think both those practices are unconstitutional.

Not that my opinion carries any weight, but I highly respect the establishment clause of the 1st Amendment, and I think it is abhorrent that the Congress and the SCOTUS open their sessions with a prayer. I mean, seriously. How important is that prayer, really? What good does it do? Isn't the 1st Amendment more important? I, for one, think it is.

-Laelth

[John1956PA]

36. IMHO, the issue is narrow, since anyone from the community can volunteer to give the invocation.

Here is an excerpt is from page 2 of the Petition for Writ for Certiorari:

The Town of Greece has a policy whereby any citizen of any faith (or of no faith) may volunteer to give
the invocation at the beginning of Town Board meetings, and that policy has resulted in invocations reflective of the faith communities in the Town—including prayers with Christian, Jewish, and Bahá’í references. When two town citizens challenged this practice under the Establishment Clause, the district court concluded—based on Marsh—that the practice was permissible. The court of appeals, however, relying on dictum in this Court’s decision in County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989), applied an "endorsement” test and concluded that the proportion of Christian prayers to non-Christian prayers could be viewed by an “ordinary, reasonable observer” as affiliating the Town with the Christian faith. App. 17a, 19a.

I do not think that, if the Supreme Court upholds the invocation policy, the case will be a precedent which will drastically alter our existing level of protection from state-sponsored religion. However, I do not care for the policy. I keep my non-belief private. As a citizen of the community, I would pass on the chance of giving an atheist invocation, since I would not want to become the object of disdain in the town.