Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Supreme Court Watch: Prayer and Pluralism Revisited

Julia K. Stronks


By Julia K. Stronks

October 18, 2013

The US Supreme Court opened its 2013-14 term on Monday October 7th. While conversations about Syria, the government shutdown, and the debt ceiling dominate the news cycle, it is important to think about how the upcoming year’s legal decisions could impact the lives of ordinary Americans.

Although recent deliberations around same-sex marriage, immigration, and the constitutionality of the Affordable Care Act focused the public’s attention on the Court in ways that we haven’t seen in quite a while, the cases facing the Supreme Court this year do not have the same high profile, hot button excitement. However, these upcoming decisions, although perhaps less exciting, have the potential for long-term impact in wide-ranging areas.

The Court is reconsidering past precedent for abortion access and the ability of state governments to limit affirmative action. The Justices will hear a variety of cases whose outcomes could limit or expand the power that government has over citizens and that businesses have over employees.

The Court will look at mechanisms used to bring class action lawsuits and age discrimination lawsuits. It will also consider when judges may exercise jurisdiction over businesses that have indirect contact with a state. Cases like these could prevent people from using the judicial branch of government to hear concerns, putting more pressure on legislators to be sure they are representing and responding to the needs of everyone in their constituencies and not just the interests of those who support their candidacies. The Court will hear an important campaign finance case that addresses exactly this concern: How much money may an individual give to a variety of different candidates?

A number of cases will focus on the rights of criminal defendants and the rights of victims. For example, may my roommate give police permission to conduct a search without a warrant when I have expressly told my roommate that I would not agree to a search? The Court will also consider what the remedy should be for ineffective assistance of counsel. And, in a critical case, the Justices will tell us whether a victim of child pornography may sue the people who have been convicted of viewing and owning her pictures in violation of criminal law.

In one particularly important matter tied to pluralism, the Court will consider an establishment of religion case. The Justices will clarify the way they think about the issue of faith in the public square. Right now there are dozens of cases in the pipeline coming toward the Court that seem to pit the interests of the faith community against the interests of a larger majority that is willing to limit the expression of faith in fields like business, education and non-profit institutions. This will test the commitment of Christians interested in pluralism as they think about the protection of other minorities in society. Greece v Galloway begins to lay out some of these considerations.

In Greece v Galloway, two residents of Greece, New York filed a lawsuit saying that the prayers offered at the monthly town board meetings violated the First Amendment’s prohibition against the establishment of religion. Over the course of ten years, the town had invited local people to be monthly “chaplains,” opening the town meetings with prayer. However, the town did not have a set procedure for inviting people. With only four exceptions, the chaplains were Christians, offering Christian prayers that invoked Christ and salvation. The participants at the town meetings were encouraged to stand and pray along, and they did.

When the lawsuit was first brought, the lowest federal court sided with the town, saying without much discussion that the prayers did not advance a particular religion. However, the Second Circuit sided against the town on appeal in an interesting decision that expressed support for invocation in legislative meetings as long as protections were put in place to avoid both advancement of a particular faith and advancement of a general “civil religion.”  The judges said that the procedure was at fault in this case and not the prayers themselves, indicating that a truly pluralistic approach in which members of a community were invited to express an invocation from whatever worldview they had would be allowed.

Four decades ago, the Supreme Court said that prayers at legislative hearings did not violate the Constitution, mostly because prayers were embedded in our history. Establishment Clause jurisprudence has developed quite a bit since those days and what the Court will do is unclear.  Chief Justice John Roberts could lead the Court away from further Establishment Clause discussion, saying that this case can easily be decided on the basis of past precedent. But the Court may possibly be persuaded by the “totality of the circumstances” approach taken by the Second Circuit against the town of Greece.

If the Court decides that one faith rather than a plurality of faiths dominated the prayers, it bodes well for further pluralism arguments in front of these Justices. It will demonstrate that the Justices are sensitive to the need for government to respect a variety of worldviews even in the face of an overwhelming majority preference. This is important groundwork for a Court that will eventually hear arguments by Christian businesses like Hobby Lobby that have faith-based objections to parts of the Affordable Care Act.

- Julia K. Stronks has practiced law and has a Ph.D. in political science. She holds the Edward B. Lindaman Chair at Whitworth University in Spokane, Washington. 

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