U.S. Supreme Court Justice Antonin Scalia is rarely subtle when angry. And he has often been angry when evaluating the tests employed by his colleagues to resolve First Amendment religion cases. In particular, in a 1992 concurring opinion, he derided a multifactor test for evaluating the proper separation of religion and state as “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried … frightening the little children and school attorneys” across the country.
The undead have risen again. This term, the U.S. Supreme Court will return to the topic of religion-state separation in Town of Greece v. Galloway, No. 12-696. In that case, the U.S. Court of Appeals for the Second Circuit held that the tradition of opening a small town’s meetings with a prayer effectively operated as a governmental endorsement of Christianity. This case will provide an opportunity for the court’s most recent appointees to express their views on the difficult question of the proper test(s) for resolving establishment clause cases.
