Supreme Court upholds legislative prayer in Town of Greece v. Galloway

This morning the Supreme Court held in Town of Greece v. Galloway, that the town’s practice of beginning legislative sessions with prayers does not violate the Establishment Clause of the First Amendment. It was a 5-4 decision, split along traditional right-left lines, though there is not a clear majority opinion.

Justice Kennedy wrote for the Court, joined by the Chief Justice and Justice Alito in full and Justices Scalia and Thomas in part.  Scalia and Thomas refused to join part Part II-B of Kennedy’s opinion, which concluded that a “fact-intensive” inquiry of the specific practice at issue in this case did not unconstitutionally coerce individuals to engage in religious observance. Justice Alito wrote a concurring opinion, joined by Justice Scalia. Justice Thomas wrote an opinion concurring in part and concurring in the judgment, joined by Justice Scalia in part. On the other side, Justice Breyer wrote a dissenting opinion for himself, and Justice Kagan wrote a dissent joined by Justices Breyer, Ginsburg, and Sotomayor.

Justice Kennedy’s decision appears to rest squarely on the Court’s decision in Marsh v. Chambers, which upheld the state of Nebraska’s practice of opening legislative sessions with a state-appointed chaplain.  Although the practice might appear to constitute an establishment of religion under the Lemon test, the Court in Marsh noted that such legislative prayers date back to the First Continental Congress and concluded that such a well-established tradition could not violate the Establishment Clause.   Thus unless the Court were willing to overturn Marsh, the only way to invalidate the prayer at issue here would be to conclude that it was more sectarian or more coercive.

Justice Kagan, writing for the four dissenters, sought to distinguish the prayers at issue here from those upheld in Marsh.  Her dissent begins:

For centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will countas full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.