From the Supreme Court: Oral Argument in the Case of Greece N.Y. v. Galloway (the “Greece” case)

Many Meridian readers will have been following the progress of the Greece case.

You may recall at issue is the constitutionality of public prayer before local legislative bodies, where the prayers are given with deference to all religions by rotating who

prays among local churches and religions.

Meridian‘s past coverage has included reports on the amicus brief -a friend of the Court brief-filed in the Greece case by a historic number of Members of Congress. The November 2012 oral argument was then briefed on Meridian this past October (see A Patriotic Primer on Preserving Religious Liberty). Prior to that article, legal issues raised were analyzed on Meridian last December – (see How to push back against our Culture’s Anti-religious Secularism).

The Greece case is now set for decision by the nine Justices of the U.S. Supreme Court. Oral argument of one hour has been concluded before the Court, and this article provides readers with a “look see” from inside the Courtroom at the oral argument.

What Is At Issue

In essence, this case concerns the constitutionality of public prayers. The facts in the case are both quite specific and will prove intensive in the Court’s final decision. In large part the “fact specific” nature of the case goes to the particular category of public prayer at issue, which is a local legislative prayer where each and every religion in the community was offered an equal opportunity to give on a rotating basis an opening prayer.

The Supreme Court has a jurisprudence of religion with rules for legislative prayers. Technically phrased, this case asks the Justice to analogize from the facts in the 1983 U.S. Supreme Court decision in the legislative prayer case of Marsh v. Chambers. There’s no predicting the Court, nevertheless the “Marsh” precedent should be found controlling, leading to a constitutional victory for the forces of the free exercise of religion, and a defeat for secularism.

Understanding the Marsh Precedent as Controlling

It is only a slight exaggeration to summarize the two cases of Marsh and Greece as constitutional twins. As far as the relevant constitutional analysis goes, the two can be fairly characterized as almost factually identical. Each case resembles the other in requiring the same analysis relative to “legislative prayers.” The importance of that family resemblance comes helpfully into focus against the backdrop of Chief Justice Burgers announced rule in Marsh. The Chief there sets forth the necessary steps in reasoning needed to decide that the Greece, New York’s legislative prayers are presumptively “constitutional.”

The Mentality of the Current Court

Three of the Court’s current Justices overlapped at Princeton University with the author. How is that relevant?   The relevance, if any, comes from an understanding of a certain mentality from shared exposures in the Princetonian adventure of ideas peculiar to being at the same time and place. More on this further below. Some of that mentality was also the subject of another Meridian piece (see Meridian, October 24, 2010, Confessions of a Mormon Law Clerk at the U.S. Supreme Court.)

Productive Tension in the Courtroom: Justices Kagan and Ginsburg versus Justices Scalia and Alito

In the November 6 oral argument, it was the voice of Justice Kagan that broke the ice. (Here I am reporting admittedly second-hand from Internet coverage, let me be quick to disclose.)  

The Justice spoke first with a stunning hypothetical, I believe, to bring the other Justices’ attention around to her partisan and secular values.   In what is sometimes known informally around the Court as “constitutional” or “oral argument gamesmanship,” it is believed at least by law clerks that if the Justice “first up” can “hit the ball out of the park” with just the right question, a tacit assumption of “first come first serve” may then color some of what is subsequently on some of the Justices’ minds in an oral argument. Law clerks spend some creativity therefore trying to draft a winning question for their particular Justice to use.

There’s absolutely nothing untoward in this tactic. In fact, just as in a Mormon Fast and Testimony Meeting occasionally a theme for the whole meeting can develop from the first speaker’s testimony, so too a Justice’s hypothetical has potential for framing other Justices’ perspectives.

Addressing counsel defending legislative prayer, this is what Justice Kagan said, which I quote in full:

“Suppose that as we begin this session of the court, the chief justice had called a minister up to the front of the courtroom.

“And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following:

“‘We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised [stet] up the Lord; You who will raise us in our turn and put us by his side.’

“The members of the Court who had stood responded amen,’ made the sign of the cross, and the chief justice then called your case.

“Would that be permissible?”

“Ask a stupid question and . . . . ”

If you start with the wrong question in analyzing an issue, it will very often throw-off your answer. Ask the wrong question and odds are good that’s you’ll get the wrong answer. In fact, one thing we pay the Justices for is precisely to know the right questions to ask.

The Kagan hypothetical was from outer space. Patently obvious as a scare tactic, it appears to have only influenced votes already “in the bag” on the Justice’s side, and perhaps some unsure observers.

Justices Samuel A. Alito and Antonin Scalia returned the Court to whether a pre-existing rule of decision is already available to decide the Greece case.

A careful student of constitutional jurisprudence, thanks to his tutelage at the hands of Princeton Jurisprudence professor Walter Murphy -who also taught me and who is a “dead cert” (as the British say) will have also taught Justices Kagan and Sotomayor, Justice Alito returned the Court to the issue of “legislative prayer.”  He noted that no legally relevant factual distinction separated the legislative prayer before the Court from a “Marsh” state “legislative prayer.”

Asked Justice Alito, “It’s clearly a legislative body, is it not?”

“The only difference is it’s a town rather than, than Congress or a state legislature where you have more formalized procedures,” the Justice added.

Justice Alito will have had in mind the clarity of the Court’s opinion in Marsh:

“From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”

Justice Kennedy is Likely to Cast the Deciding Vote in this Case

Did Justice Kennedy tip his hand how he might vote?

As if following Justice Alito’s thinking, Justice Kennedy turned to the attorneys arguing the case for help on defining a “legislative prayer.” He clearly sought out some criteria that might distinguish local from state governments in this context. And it is at that point that this coverage of oral argument stops. Counsel on both sides failed to nail the inquiry.

What Happens Next

Between now and next June, Justice Kennedy will, with the other Justices and all of their law clerks, scour the materials filed with the Court in this case as well as the technical legal literature to sort out reasons for and against a possible distinction between local and state legislative prayers.

The partisanship of the “secular law clerk” power block will exert subtle but real pressure on Justice Kennedy to strike down the prayer at issue as unconstitutional.

This happens behind closed doors, since the Framers intended the Court to be immune from partisan politics. What might be done then in the meantime to influence a finding of constitutionality?

Just this: pray!

Why? Because this case is terribly important to the moral health of the Republic. May the Justices’ hearts be softened to do the right thing. Failing that, may the Justices’ heads be softened to allow the right result to come to pass. (And for my intuitions, both those prayers are probably together a good idea.)

Ashby D Boyle II if Professor of Constitutional Studies, Religion and Society and President at George Wythe University in Salt Lake City. He is also Meridian’s US Supreme Court correspondent.