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Tuesday, August 20, 2013

How should the town's lawyer answer "the Lemon/endorsement question" in Town of Greece v. Galloway?

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?

http://mirrorofjustice.blogs.com/mirrorofjustice/2013/08/how-should-the-towns-lawyer-answer-the-lemonendorsement-question-in-town-of-greece-v-galloway.html

Walsh, Kevin | Permalink

Comments

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Professor Walsh, I suppose if our Founding Fathers wanted to put up a wall separating the State from the various churches, they would have passed a Law establishing a State Religion, for example, Anglicanism, but instead they decided that "Congress should make no Law respecting an establishment of religion, or prohibiting the free exercise thereof", thus The Establishment Clause and The Free Exercise Clause complement each other, while The Lemon Test will result in a contradiction of terms. The town wins, if the judges follow the spirit of the law.

I look forward to reading your posts on this blog!

Posted by: Nancy | Aug 21, 2013 8:24:08 AM

Marsh does not apply Lemon, but I think it could meet the endorsement test (as applied by this Court), and Justice O'Connor would (like "under God" in the Pledge) argue that legislative prayer overall would be allowed under it.

The change from moment to silence to legislative prayer would not necessarily be a problem there if the prayer system is neutral enough and does not endorse a specific faith (especially if atheists etc. technically have the ability to take part). Still, the other side can red flag the change from moment of silence as problematic for endorsement purposes, while noting (like the 2A) they in no way are saying all legislative prayers would violate the change.

Wallace v. Jaffree and McCreary County v. American Civil Liberties Union would be two cases where narrow rulings based on recent changes that seem to "endorse" certain faiths can be cited.

Posted by: Joe | Aug 21, 2013 10:48:16 AM

ETA: Ugh. Edit that to "would violate the 1A."

To directly answer, Marsh didn't apply Lemon here, so why should the town? I guess you can cite O'Connor's Newdow opinion and argue the solemnization of proceedings is a sort of "secular" matter, but that's a bit weak (Scalia will pipe up) and with the moment of silence precedent, it is hard to say it is "necessary."

Posted by: Joe | Aug 21, 2013 11:00:21 AM

Joe, regarding precedent, in the beginning, Congress would not have started their session with a Prayer, if they believed that Prayer was a violation of the Establishment Clause.

Posted by: Nancy | Aug 21, 2013 11:14:47 AM

Nancy, history was cited by Marsh, but history only takes us so far. For instance, Congress allowed segregation in public schools shortly after the passage of the Fourteenth Amendment. Congress can make mistakes.

Posted by: Joe | Aug 21, 2013 11:43:54 AM

Joe, Congress, no doubt, can make mistakes, however, as long as the law is grounded in truth, if you follow the spirit of the law, the law will remain consistent.

Posted by: Nancy | Aug 21, 2013 1:11:15 PM

Interesting final question. From a fairly quick glance at the Town's brief, it looks like the Town really emphasizes that its policy is constitutional under Marsh and that endorsement and the Allegheny County approach should not be "imported" into this context. The Town spends the vast majority of its argument on Marsh and on criticizing endorsement, while also claiming that endorsement should not be extended.

On the other hand, the Town spends four pages arguing that its policy is constitutional under any test (50-54), and only 2 of those pages involve endorsement. It argues that the "reasonable observer" familiar with the country's history of legislative prayer would not deem it an endorsement, and that the reasonable observer would conclude that its policy is "neutral" with respect to religion. It says, "Neutral policies of this sort do not amount to an 'endorsement' of religion. This is true even if neutral outcomes do not result."

That doesn't sound right to me, but maybe I am misunderstanding it. I've always thought that the endorsement test is essentially the second prong of the Lemon test, applied to this particular category of establishment clause conflict. That is, the reasonable observer takes into account not only what the government's primary purpose is (the first prong of Lemon) but also whether the government action has the primary effect (or result) of advancing or inhibiting religion (the second prong).

At any rate, there is probably a good reason that the Town's brief is structured as it is!

Posted by: Marc DeGirolami | Aug 21, 2013 2:08:05 PM

The town wins under the Constitution as The Lemon test is defective and so is the argument that to Pray, is equivalent to having Congress passing a Law respecting the establishment of religion, when Prayer is not one of the necessary steps that must occur for a bill to become a Law, to begin with.

Posted by: Nancy | Aug 22, 2013 8:17:30 AM

*Of course* the Lemon and endorsement tests do not apply here. That's what Marsh v. Chambers held.

For that reason, I don't understand why the petitioners' brief (or the Bradley brief) spends so much time railing against the Lemon and endorsement test. They aren't relevant here. The issue here is not whether the government can endorse religion with legislative prayers. It can. That's what Marsh said. The issue here is whether the government can endorse one particular religion (Christianity), and whether or not the legislative-prayer scheme here does so.

Posted by: Chris Lund | Aug 22, 2013 8:40:14 AM

*Of course* legislative prayer is unconstitutional under the Lemon and endorsement tests. That's why Marsh doesn't apply those tests, right? Everything in the Bradley brief is plainly right.

The problem is that I don't understand why it's relevant. The issue here is not whether the Town can endorse religion. Both sides assume it can. The issue here is whether the Town can endorse Christianity, and whether its legislative-prayer scheme does that.

Now just as "endorsing religion" required the concept of a "reasonable observer" to determine the absence or presence of endorsement, "endorsing Christianity" will require something similar. But unless we're giving up on the idea of denominational neutrality, I don't see how that's avoidable.

Posted by: Chris Lund | Aug 22, 2013 8:48:20 AM

*Of course* legislative prayer is unconstitutional under the Lemon and endorsement tests. That's why Marsh doesn't apply those tests, right? Everything in the Bradley brief is plainly right.

The problem is that I don't understand why it's relevant. The issue here is not whether the Town can endorse religion. Both sides assume it can. The issue here is whether the Town can endorse Christianity, and whether its legislative-prayer scheme does that.

Now just as "endorsing religion" required the concept of a "reasonable observer" to determine the absence or presence of endorsement, "endorsing Christianity" will require something similar. But unless we're giving up on the idea of denominational neutrality, I don't see how that's avoidable.

Posted by: Chris Lund | Aug 22, 2013 8:48:55 AM

Chris, Of course the Town can endorse Christianity, since clearly Congress has stated our Country endorses God, with the capital G, The God of Christianity.

http://blog.beliefnet.com/news/2011/11/congress-confirms-in-god-we-trust-is-americas-official-motto.php

Posted by: Nancy | Aug 22, 2013 9:50:17 AM

Chris Lund, it sounds like the endorsement test does apply, but just in a narrower way. If the legislative prayer regime only allowed Christians, e.g., it would be illicit endorsement.

Part of the debate here is the 2CA's usage of County of Allegheny v. American Civil Liberties Union dicta. One part that seems interesting: "contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief" cannot be justified because "history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed." The word "contemporary" would seem to apply to something that just started in 1999. The rest is a blending of Marsh and endorsement -- a sort of watered down requirement.

Posted by: Joe | Aug 22, 2013 11:31:19 AM

Sorry about the multiple postings. I did not get that comments required approval, so when they didn't show, I rewrote the post and reposted, and then reposted again. Yikes. Sorry.

Posted by: Chris Lund | Aug 22, 2013 11:33:09 AM