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.

Background

Greece is a small town in upstate New York, outside of Rochester. Greece has a longstanding practice of opening each town meeting with a prayer. The tradition began as a moment of silence. With the 1999 election of a new town supervisor, however, the silence was replaced by words—specifically, an opportunity for local religious figures to open the meeting with a prayer, according to the opinion. The prayers were exclusively Christian in message and speaker for eight years. Responding to citizens’ complaints, the town eventually invited clergy from various other religions to offer opening prayers, including such diverse faiths as Baha’i and Wicca.

Two citizens, one Jewish and one atheist, eventually challenged the practice in court. They argued that the prayers violated the First Amendment’s establishment clause by coercing the town’s citizens into participating in a religious activity as part of the town meeting, the opinion said. These citizens attended the meetings periodically in order to petition the council for various sorts of action. They argued that a lack of participation in the prayer was an obstacle, either perceived or actual, to any favorable decision from the council.

The issue split the lower courts, both in this specific case and across the nation in similar cases. Here, the district court judge ruled that the town officials were not intentionally establishing Christianity as a sort of official religion of the town’s government. The Second Circuit reversed that decision and held that the prayers functioned as a town endorsement for Christianity. That court used a totality-of-the-circumstances test to distinguish prior Supreme Court cases from Greece’s current practice.

The U.S. Supreme Court agreed to resolve the dispute and heard oral argument in the case Nov. 6.

Supreme Court Precedent

Two Supreme Court cases loom large in this case: Marsh v. Chambers, 463 U.S. 783 (1983), and Lemon v. Kurtzman, 403 U.S. 602 (1971). Marsh is the most directly relevant to the case, inasmuch as it involved legislative prayer. Lemon (the “ghoul” stalking Scalia) relates to the proper test that should be employed to evaluate establishment clause claims.

Marsh upheld legislative prayer in the Nebraska Legislature. One of that body’s non-Christian members testified that his presence was mandatory on the legislature floor, and he felt that his colleagues would scorn him if he did not stand for the prayer when requested. The court drew deeply from historical precedent in holding that the prayer did not violate the establishment clause. Writing for a six-justice majority, then-Chief Justice Warren Burger noted that our nation has used religious prayer or invocations to open many legislative sessions, including the U.S. Congress. The court also rejected the coercion argument, distinguishing cases involving prayer in school that involved children, who are more easily influenced than adults. Those cases also involved a more inherently coercive environment—a classroom or school-related function. The court emphasized that the atmosphere of a legislature is much less coercive than a child’s academic setting and that the standard for adult coercion is much higher than that for children.

Lemon struck down Pennsylvania’s 1968 Nonpublic Elementary and Secondary Education Act. The act allowed state funding for secular instruction in nonpublic and religious schools. This case gave birth to a three-prong test to determine whether government action satisfies the requirements of the establishment clause: it must have a secular purpose, it must not have the primary effect of either advancing or inhibiting religion, and it must not result in excessive government entanglement with religious activities. As Scalia’s mocking comments suggest, the court has applied this test inconsistently over the years, and it will be interesting to see whether this collection of justices revive it, bury it, or ignore it.

The Arguments

The town of Greece, the petitioner, argued that Marsh governed this case. The petitioner stated that, unless the lower court were reversed, courts across the country would be forced to sit as “national theology boards.” It reiterated the historical foundation of Marsh and urged a straightforward application of that holding, according to the opinion. If it was constitutional in 1983, it should be similarly constitutional today. In fact, according to the town, the prayers in this case were even more acceptable than those contested in Marsh.

On the other side, the respondents attempted to distinguish their case from Marsh by establishing the coercive nature of the prayers at issue and the town’s apparent endorsement of Christianity. They alleged that the combination of their status as private citizens and the explicitly Christian prayers established a more coercive environment than that of Marsh, where a state senator was free to leave chambers during prayers that were “not explicitly Christian.” To distinguish their case, the respondents pointed to Christian language in some of the past prayers, such as the reading of biblical passages and references to Christian holidays. According to the respondents, the pressure to participate was undeniable. They reported feeling “isolated, embarrassed, and humiliated,” when they did not participate, “while those around them stared.”

Oral Argument

At oral argument, the justices appeared skeptical that the court could find a middle ground to satisfy all parties’ interests. Justice Elena Kagan expressed a general concern that the court’s involvement in religious affairs just exacerbated the problem instead of satisfying the parties involved. Picking up that theme, Justices Samuel Alito and Scalia challenged the respondents’ desire for a nonsectarian prayer, noting that no prayer would be acceptable to all citizens and religions (including atheists). Respondents’ counsel conceded that atheists, and perhaps devil worshippers, would not be satisfied with any prayer at the meeting. While Justice Stephen Breyer tried to formulate an intent-based “good faith” approach—no pun intended, surely—neither the parties nor the other justices seemed willing to accept that as a workable standard.

The Supreme Court does not grapple with many simple issues, as a general matter, but establishment clause cases are among the thorniest thickets into which the justices venture. The decision in Greece will be no different. This case has the potential to define the next generation of establishment clause cases if the court blesses a particular test to determine the constitutionally permissible separation between religion and state.

Stephen A. Miller practices in the commercial litigation group at Cozen O’Connor’s Philadelphia office. Prior to joining Cozen O’Connor, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Kathryn A. Young also practices in the commercial litigation group at the firm in Philadelphia. She graduated from the University of North Carolina at Chapel Hill and the University of Virginia School of Law.