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U.S. Supreme Court

Chemerinsky: Separation of church and state revisited

Posted Oct 30, 2013 8:30 AM CDT
By Erwin Chemerinsky

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Erwin Chemerinsky.

The Supreme Court will return next week to one of the most controversial topics in constitutional law: the separation of church and state. The court is scheduled to hear oral arguments Nov. 6 in Town of Greece v. Galloway, which poses the issue of whether explicitly Christian prayers before town board meetings, delivered by invited Christian clergy, violate the establishment clause of the First Amendment. Underlying the case is the even larger issue of the meaning of the establishment clause.

The town of Greece is a suburb of Rochester, N.Y. Until 1999, its town board opened meetings with a moment of silence. But then Town Supervisor John Auberger initiated a policy change, and the town began inviting clergy to begin meetings each month with a prayer. From 1999 to 2008, the town invited exclusively Christian ministers, most of whom included explicitly Christian content. Some elaborated on Christian theology, discussing "the saving sacrifice of Jesus Christ on the cross" and "the plan of redemption that is fulfilled in Jesus Christ."

In 2007, complaints were made to the town board about this and for four months clergy from other religions were invited. But then for the next 18 months, the board reverted to inviting only Christian clergy and their prayers were almost always explicitly Christian in their content.

A lawsuit was brought claiming that the town's practice violated the establishment clause of the First Amendment. The federal district court ruled in favor of Greece, but the 2nd U.S. Circuit Court of Appeals reversed. Judge Guido Calabresi wrote for the court and emphasized the totality of the circumstances: the town inviting only Christian clergy for almost all of an 11-year period; the explicitly Christian content of the prayers; and the participatory nature of many of the prayers in a small setting, including the audience being asked to join in saying the “Our Father” prayer and bowing their heads.

This is not the first time the Supreme Court has dealt with prayer before legislative sessions. In Marsh v. Chambers (1983), the Supreme Court upheld the constitutionality of prayers before sessions of the Nebraska legislature delivered by a Presbyterian minister who was on the state's payroll for this purpose. The court, in an opinion by Chief Justice Warren Burger, emphasized the historical practice of legislative prayers since the earliest days of the country. However, the court also noted that the prayers were "non-sectarian" and that all references to Christ had been removed from the prayers. The court said that prayers were permissible before legislative sessions so long as they did not "proselytize, advance or disparage" religion.

The town of Greece argues before the Supreme Court that Marsh v. Chambers is controlling and its prayers are permissible because they do not "proselytize, advance, or disparage" a particular religion. But the challengers argue that the town's practices clearly endorse and advance the Christian religion: For 11 years, except for four months, the town board invited only Christian clergy and they usually delivered explicitly Christian prayers.

Surprisingly, the Obama administration filed a brief on the side of the town. The federal government is not a party to the suit and did not have to participate at all. Traditionally, Democratic administrations have favored enforcing the wall separating church and state. In fact, even the Reagan administration in its brief in Marsh v. Chambers emphasized that non-sectarian prayers are required. It therefore was unexpected to see the Obama administration filing a brief on the same side as the religious right.

Underlying the case is the question of the appropriate theory to be used in interpreting the establishment clause. For decades, the court held that the establishment clause created a wall separating church and state and enforced it to declare unconstitutional religious presence in government and government support for religion. Beginning in the 1980s, Justice Sandra Day O'Connor took a different position; her view was that the government violates the establishment clause if it "endorses" religion or a particular religion. Other justices, such as Harry Blackmun and Stephen G. Breyer, also took this approach. As the swing justices their views controlled the outcome of many establishment clause cases.

But while William Rehnquist was chief justice, four justices–Rehnquist, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas–took a very different view. They argued for "accommodation" and contended that religion should be accommodated into government. They added that government support for religion should be tolerated so long as the government does not discriminate among religions. Under their view, the government violates the establishment clause only if it coerces religious participation. There has been disagreement among these justices as to what is necessary to prove coercion. For Justice Scalia, legal coercion–compulsion with penalties for non-compliance–is required in order for the government to violate the establishment clause. For Justice Kennedy, social pressures have been enough to find coercion.

Amicus briefs filed on behalf of the town urge the court to adopt this coercion test. Conservative groups hope that Chief Justice John G. Roberts and Justice Samuel A. Alito might join Justices Scalia, Kennedy and Thomas in creating a majority to make this the controlling test. Under it, especially under Justice Scalia's version, little ever would violate the establishment clause. Religious symbols on government property, prayers before legislative sessions, and aid to parochial schools all would be allowed because they do not coerce religious participation. In fact, it would seem that a town could declare itself to be Christian (or any religion) because that would not coerce religious participation.

But opponents of the coercion test point out that never has a majority of the court adopted this approach. It would overrule decades of precedents concerning the establishment clause and leave little to the wall separating church and state. Those who urge the affirmance of the 2nd Circuit on behalf of the challengers—including an amicus brief that I co-authored–point to Justice O'Connor's words, shortly before she left the high court: "At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate ... Why would we trade a system that has served us so well for one that has served others so poorly?"

Why indeed?

Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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