Tuesday, August 20, 2013
I am preparing this evening for an argument simulation that we are doing tomorrow for the incoming 1Ls as part of orientation. I have been assigned the task of arguing for the petitioner (the town government) in Town of Greece v. Galloway. The process has caused me to appreciate the difference in perspective that comes from my stance as an academic lawyer rather than a government lawyer. But I find myself in need of orientation because switching between these two perspectives is disorienting.
Michael Moreland posted a little while back about the amici curiae brief headlined by Gerard Bradley that he had joined (along with several other constitutional scholars). Soon after that posting, I read that brief, along with the Obama Administration's brief, and others. I found the Bradley brief refreshing in its insistence that what the brief referred to as the Lemon/endorsement test "is inapposite to legislative prayer." The brief argued that: (1) legislative prayer necessarily has a religious purpose; (2) the concept of neutrality underlying the Lemon/endorsement test makes no sense of legislative prayer; (3) legislative prayer does not comport with the Lemon/endorsement test because that cannot apply to a continuing and perhaps long-time government practice with the same force as it may apply to a single act or display; and (4) applying the Lemon/endorsement test to legislative prayer could itself lead to an unconstitutional result. But considering the arguments from the perspective of the town's lawyer (my role for the simulation), I am not sure that I would or should present the arguments in precisely the same way. I do not want to admit that the town loses if the Lemon/endorsement test applies.
I cannot deny, of course, that the purpose of seeking Divine guidance is a religious purpose. But I will be less willing to treat that purpose as incompatible with the purpose of solemnizing the proceedings. I do not want to have to agree that "[t]o apply [the Lemon/endorsement] test to legislative prayer is simply to overrule Marsh v. Chambers, and thereby to eradicate a practice cherished by Americans since the founding." But maybe I need to, because I need to explain why the town shifted in 1999 from beginning with a moment of silence (which seems sufficient for solemnizing) to beginning with an invocation from an invited volunteer. And in making that explanation, perhaps I will find myself back in agreement with the Bradley brief anyhow. Maybe I should embrace its approach to begin with.
Let us now put aside the simulation and ask the question directly. Suppose the town's lawyer is asked at oral arguments in the actual case: "Does the town lose if the Lemon/endorsement test applies?" How should the town's lawyer answer? The town's brief says that the town wins under any test. But is that right?