Jessie Hill is a Professor of Law at Case Western Reserve University.
The Court’s decision to revisit legislative prayer on the thirtieth anniversary of Marsh v. Chambers, upholding the state of Nebraska’s legislative chaplaincy based on its perceived ratification by longstanding history and tradition, raises numerous questions about the direction its Establishment Clause jurisprudence might take. But perhaps one of the most difficult questions is “why?” Why did the Supreme Court take this case?
Certainly, there are reasons that the Supreme Court would want to consider a legislative prayer case. Legislative prayer has been the subject of significant activity in the lower federal courts, and it may well be time for the Court to clarify its doctrine in this area. Many lower courts have seemed to take Marsh as a sort of blanket immunity for prayer practices, even sectarian ones, in any kind of legislative setting. They have okayed, for example, praying “in Jesus’ name” and excluding a Wiccan prayer leader because she would not invoke a “divinity that is consistent with the Judeo-Christian tradition.” It may be that the Court intends simply to ratify those lines of cases – or, alternatively, to modify the lower courts’ current approach. Perhaps the Supreme Court is poised to sanction legislative prayer to an even greater degree than Marsh, which emphasized the nonsectarian nature of the prayer in that case, appeared to do.
Or, it may have something more sweeping in mind. As I note in a forthcoming article, commentators have been prematurely tolling the death knell of the “endorsement test” used by the Supreme Court in some Establishment Clause contexts, because there have seemingly been five votes to get rid of it since Justice Sandra Day O’Connor was replaced by Justice Samuel Alito in 2006. The appeals court applied the endorsement test in this case, so perhaps the Supreme Court is finally taking this opportunity to deep-six it, as the petitioner’s brief asks it to.
But Galloway is an exceedingly odd vehicle for the Court to accomplish any major doctrinal shifts or clarifications. First, the facts are equivocal. For example, it is not entirely clear just how sectarian the Town was in its approach. Although the overwhelming majority of prayers were delivered by Christian clergy – non-Christian speakers prayed on only five occasions since the practice began in 1999 –it does not seem that the town actively sought or desired that result. The only year in which non-Christian speakers were invited was 2008, the year the litigation was filed – but it seems distinctly possible that bureaucratic laziness, busyness, inattention, or disorganization may have been to blame, rather than religious bias. In other words, the prayer practice in Galloway is arguably not as blatantly sectarian as in many other legislative prayer cases.
At the same time, the facts in Galloway are different from the facts in Marsh in several ways that cut in the opposite direction. Because Galloway involves a municipal body rather than a state legislature or the U.S. Congress, the plaintiffs are able to point out that, unlike in state legislatures, it is not uncommon for members of the public to be required to appear before the municipal board and thereby subject themselves to prayer. This group of citizens appearing before the board includes individuals seeking zoning variances and those receiving awards for community service, among others; indeed, it often includes children, for whom the Court has traditionally shown great solicitude in the Establishment Clause realm. Given all of these distinctions, the Court could easily rule for the challengers by distinguishing Marsh. But such a ruling would require the Court to rely on fine-grained consideration of the specific factual circumstances at issue in Galloway, rather than broad constitutional principles. And it seems unlikely that the Court is looking for a way to affirm the Second Circuit in Galloway anyway.
A second problem is that the Second Circuit’s opinion striking the prayer practice was rather innovative in its legal analysis – which is probably why the plaintiffs, who won below, nonetheless barely mention it in their brief. The Second Circuit, in a fascinating but possibly too-clever-by-half opinion by Judge Guido Calabresi, read Marsh’s approval of legislative prayer in conjunction with the Court’s opinion in County of Allegheny v. ACLU, decided six years after Marsh. In Allegheny, a majority of the Justices applied the endorsement test to hold unconstitutional a crèche display in a county courthouse. The Second Circuit noted the Court’s observation in Allegheny that, unlike the legislative prayer in Marsh, the Allegheny County crèche display was sectarian and would likely be perceived by the “reasonable observer” as affiliating the government with Christianity. Because of the overwhelmingly sectarian quality of the prayers sponsored by the Town of Greece and the town’s virtually utter failure to act in a way that would prevent or remedy that sectarianism, the Second Circuit held that the reasonable observer would perceive the prayers as affiliating the town with Christianity. This assertion is undoubtedly correct, but it does not reflect the predominant approach to legislative prayer issues, in which courts generally invoke Marsh as a sort of history-and-tradition exception to, rather than a constituent piece of, the larger body of Establishment Clause doctrine concerning official religious speech. Though it is both sensible and appealing to attempt to assimilate the legislative prayer cases to cases involving government displays of religious symbols, mottos, and the like, it is not the state of the doctrine.
Because the Second Circuit brought the reasonable observer into the mix, then, it is possible that the Court intends to use this case as a vehicle to lay the endorsement test to rest, once and for all. But, given that the prayer practice need not be analyzed under the endorsement test in order to find it sectarian and therefore unacceptable — indeed, Marsh itself suggested that official prayers could not be sectarian – this would, again, be an odd choice of a case in which to make such a sweeping move, especially considering that the Court declined to do so in other recent cases which involved religious symbols and therefore would have been better vehicles, such as Salazar v. Buono (which the Court decided in 2010) or Utah Highway Patrol Association v. American Atheists (in which the Court denied certiorari).
It is possible, of course, that the Court intends to engage in simple error correction – to say that the Second Circuit applied the wrong legal analysis to this set of facts and that the result therefore should have been different. But it is hard to see why the stakes in this particular case would have struck the Court as sufficiently high to require this sort of correction. The Town of Greece, a suburb of Rochester, New York, has a population of about 100,000, and the case seemed to have no national importance before the Supreme Court accepted it for review. Indeed, commentators are still surprised that the Obama administration even weighed in on it. So why did the Court bother?
I don’t pretend to have an answer to that question – the mystery may only be solved when the Court hands down its decision, if even then. As everyone knows, it takes four votes to grant certiorari in a case but five votes to decide it. It’s possible that four Justices saw the case as a chance to reshape Establishment Clause law, but whether they will get the votes to do that may still be up for grabs. Galloway could turn out to be another surprising opinion that fails to go all the way toward remaking constitutional doctrine – a little like last Term’s decisions in Fisher v. University of Texas, in which the Court remanded for stricter application of the equal protection test rather than ending affirmative action in higher education, or Shelby County v. Holder, in which the Court struck down the coverage formula in Section Four of the Voting Rights Act but refrained from striking down Section Five. Those decisions were significant, of course, but they were not as radical as observers of the Roberts Court might have expected them to be. Whether the Galloway case will go out with a whimper or a bang, no one can say for sure at this point – maybe not even the Justices themselves.