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10/01/2013

Richard Garnett on Legislative Prayer and Judicial Review
Michael Ramsey

At SCOTUSblog, Richard W. Garnett: Legislative Prayer and Judicial Review.

After taking a year off from church-state cases, the Justices are set to jump back into the fray.  In early November, the Supreme Court will hear arguments in a case called Town of Greece v. Galloway, which involves a smallish New York community’s practice of opening its Town Board meetings with a short prayer, offered by a volunteer “chaplain of the month.”  ...

The Town of Greece case, though, is interesting not only for what it could tell us, going forward, about the Court’s First Amendment doctrines and precedents, about the place of religious expression in the public square, and about the extent to which secular governments may acknowledge their citizens’ religious convictions.  The case also provides, I think, a good opportunity for reflection about the role and power of the Supreme Court and about the nature and practice of judicial review in a constitutional democracy like ours...

The “meaning” of the Establishment Clause – and, more specifically, of the no-establishment rule that the Fourteenth Amendment applies to state and local governments – is, to put it mildly, fiercely contested.  In my own academic writing, I have treated the relevant texts as meaning that religious and political authorities should be distinguished and disentangled so as to protect religious freedom.  Others would emphasize government “neutrality” among religions or with respect to religion, or the avoidance of religion-related civil strife, or equal respect for believers and nonbelievers, and so on.  In any event, it is very unlikely that the Court’s decision in Town of Greece or any other will put the debate to rest or that the Justices will agree among themselves. This deep disagreement will not only complicate, but also compromise, the work of judicial review.