This column by ACRU Senior Legal Analyst Ken Klukowski was published August 8, 2013 on Breitbart.com.
Congress, half of the states across the nation, and many others are rallying to defend public prayer in a major case at the U.S. Supreme Court. Even the Obama administration weighed in with a surprising legal brief in what is shaping up to be a major religious-liberty case—and could even become the biggest religious-liberty win in over half a century.
This is an update to our earlier report on Town of Greece v. Galloway, regarding whether prayers at government events are an unconstitutional violation of the First Amendment’s Establishment Clause. Although the Supreme Court upheld the practice of “legislative prayer” in 1983 in Marsh v. Chambers, and this town in western New York allows any citizen to volunteer to pray—even a local witch and an atheist—the Second Circuit appeals court struck down the practice because too many Christians volunteered, many of whom mentioned Jesus during their prayers.
Now the first briefs have been filed. Tom Hungar of Gibson Dunn is lead counsel in this Alliance Defending Freedom (ADF) case; his excellent brief is what you would expect from someone as accomplished as Hungar, as he prepares to argue for his 26th time before the Supreme Court.
A total of 25 amicus briefs (“friend of the court” briefs) were filed supporting ADF and the town of Greece. Among them is a brief by Indiana Solicitor General Tom Fisher on behalf of 23 states nationwide, a brief by Steffen Johnson representing 34 U.S. Senators, and the brief that I authored on behalf of 85 Members of the U.S. House of Representatives.
Then came a welcome surprise for those on side of Greece in the case when Solicitor General Don Verrilli filed a brief for the United States strongly supporting the town and opposing liberal arguments that courts should bar “sectarian” references such as mentioning Jesus or quoting the Bible.
This is ironic, in that President Obama’s typical judicial nominees are “separationists,” who take a very restrictive view that the Establishment Clause does not allow “sectarian” prayers and allows courts to purge the public square of most traditional references to religious faith. But Verrilli’s brief takes a very different position, and with its filing, it becomes extremely likely that the prayer-givers will prevail in this case before the Supreme Court.
The real question will be how broad the Court goes. The Hungar/ADF brief thoroughly discusses how the lower court in this case (and a few others) got this case wrong by applying the “endorsement test”—a standard the Supreme Court adopted in 1989, saying that government action involving religion is unconstitutional if it gives someone the impression that government is endorsing religion.
This was Justice Sandra Day O’Connor’s pet theory on religious liberty, and is completely divorced from the First Amendment’s original meaning and 200 years of precedent. The endorsement test has been a train wreck since the Court narrowly adopted it by a 5-4 vote, setting a very hostile obstacle in the way of countless peaceful and longstanding expressions of faith and history.
This is why many of the briefs filed in this case encourage the Supreme Court to take this opportunity to overrule the endorsement test. These briefs argue it should be replaced by the “coercion test”—under which the Constitution does not allow the government to coerce any citizen to participate in a religious activity that violates their conscience, or officially create a national religion (such as passing a law declaring that we are a Southern Baptist nation). So long as there is no coercion, the First Amendment allows all manner of peaceful expressions and passive displays of faith in the public square.
The brief I filed for Members of Congress makes this argument, as does Fisher’s brief for 23 states. Similar arguments regarding this point, or the related argument that courts are not able to draw lines telling citizens what they can and cannot say during prayers, are also made by briefs for constitutional scholars, theologians, Orthodox Jews, and many others.
This is the biggest religious-liberty case to go before the Supreme Court in years. If the Court agrees on a majority opinion siding with the town and prayer-givers, it will be the biggest religious-liberty win in at least 20 years. And if the Court goes the distance and returns the Establishment Clause to the coercion standard that was the rule under the Constitution for most of America’s history, this will be the biggest religious-liberty victory in at least half a century.
This is a case worth watching. Oral arguments will be in November or December, with a decision by next July.