The lawmakers are among those calling on the justices to adopt a clear rule — requiring government to refrain from coercing participation in any religion or religious exercise, or from creating a state religion — to determine whether a practice runs afoul of the First Amendment’s clause barring laws “respecting an establishment of religion,” known as the Establishment Clause.
But doing so would drastically cut back on protections against instances in which governments abandon religious neutrality, including the dispute in the New York town of Greece, said Erwin Chemerinsky, a liberal legal scholar and dean of the University of California at Irvine law school. If the court adopts the test that the lawmakers and others are urging, “very little will be left of the Establishment Clause,” Chemerinsky said.
Chemerinsky said the prayers in Greece should be held unconstitutional under any standard.
The Obama administration is taking a middle ground, siding with the town because it said the appeals court made a mistake in departing from the Supreme Court’s 30-year-old precedent. “Courts should not parse or evaluate the content of prayer,” Solicitor General Donald Verrilli wrote in his brief, relying on the 1983 case. He said the administration has an interest in protecting the tradition of opening each day of Congress with a prayer that stretches back to the nation’s founding.
At the Supreme Court, the justices stand at their seats while Marshal Pam Talkin asks God to “save the United States and this honorable court.”
The facts of the situation in Greece, a town of roughly 100,000 people, are not in dispute.
From 1999 through 2007, and again from January 2009 through June 2010, every meeting was opened with a Christian-oriented invocation.