With Thanksgiving weekend coming to an end, it seems like a good time to share a few words about Town of Greece v. Galloway, the legislative prayer case on which the Supreme Court heard oral argument early last month, on November 6.
I have a special personal interest in this case because I was a law clerk to William J. Brennan, Jr. when the Supreme Court decided Marsh v. Chambers, the case that first upheld the practice of legislative prayer on essentially historical grounds, and worked on Justice Brennan’s dissent. The dissent argued, compellingly I think, that official legislative prayers violated the Establishment Clause despite their long history in both Congress and state legislatures. But my favorite passage in the dissent, and the one possibly most relevant to the Town of Greece case, is this:
[L]egislative prayer, unlike mottos with fixed wordings, can easily turn narrowly and obviously sectarian. I agree with the Court that the federal judiciary should not sit as a board of censors on individual prayers, but, to my mind, the better way of avoiding that task is by striking down all official legislative invocations.
More fundamentally, however, any practice of legislative prayer, even if it might look “nonsectarian” to nine Justices of the Supreme Court, will inevitably and continuously involve the State in one or another religious debate. Prayer is serious business — serious theological business — and it is not a mere “acknowledgment of beliefs widely held among the people of this country” for the State to immerse itself in that business. Continue reading