On the face of it, the religion
clauses of the U.S. Constitution's First Amendment seem pretty clear:
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof." That isn't
so hard to understand, is it?
Granted, the meaning of "an
establishment of religion" requires explaining, and the extent
and limits of religious free exercise need to be specified. But
surely these matters aren't so terribly obscure that they require an
endless stream of legal tests.
Yet, as the Supreme Court's new term
gets underway, its docket includes still another big church-state
case. This one concerns the practice of opening sessions of public
bodies with prayer, as happens with sessions of Congress and the
Supreme Court itself.
Some people may find it strange that
we still need to argue about this so late in the day. A bit of
historical background may help.
For the nation's first century and a
half, there was relatively little constitutional litigation centering
on the religion clauses. People apparently agreed on what the
language meant and were willing to leave it at that.
Shortly after World War II, however,
significant church-state disputes began in earnest. Significantly
perhaps, this development coincided with the postwar growth in size
and influence of the Catholic Church in the United States, which some
people‚including, as we now know, even some Supreme Court
It's hard not to see this concern to
keep the Catholics in their place as one underlying explanation for
the sudden rash of court tests. Part of the reason, too, was the
emergence of a new, ideologically driven thrust toward the
secularization of American institutions.
Since the 1940s, many, though by no
means all, of the controversies have been school-related--religion in
public schools, state assistance to parochial schools. In a decision
in 1971, the Supreme Court delivered the famous Lemon test for
identifying impermissible interaction between government and
religion. The result was a fresh stream of cases requiring the
increasingly frustrated justices to attempt to unravel the new
complexities and contradictions created by Lemon.
Thus the church-state sector remains a
murky battlefront in constitutional law. And now the Supreme Court is
trying again. The new case (Greece v. Galloway) comes from
Greece, N.Y., a town of 100,000 near Rochester, where since 1999 the
town council has opened its meetings with prayer offered by a
Two local women objected to this
practice and went to court. A panel of the 2nd U.S. Circuit Court of
Appeals agreed with themeven though the Supreme Court had said back
in 1983 that there is no intrinsic constitutional violation involved
in public prayer of this sort. The court will hear oral arguments
November 6, with a decision expected next spring.
A large number of individuals and
groups with church-state interests have submitted briefs in the case.
Surprising to some, the Obama administration's Justice Department has
entered the fight on the side of the town.
So have nine prominent Catholic
constitutional specialists, including Gerard Bradley of Notre Dame,
Helen Alvare of George Mason, Robert George of Princeton, Hadley
Arkes of Amherst, and Mary Ann Glendon of Harvard. Their chief
concern, it seems, is that the lower court decision sought to revive
the moribund Lemon test instead of allowing it rest in peace.
Many people who aren't constitutional
authorities would agree that's a bad idea. "We are a religious
people, whose institutions presuppose a Supreme Being," the
Supreme Court declared years ago. Let's leave it at that.