Greece v. Galloway: the day after

The transcript of the arguments in the Greece v. Galloway Supreme Court case is posted at the Supreme Court website.  Background and discussion on the case is available at SCotUSblog, and details of AU’s involvement in the case can be found at the au.org website.

My impression from an initial read? Justices Kagan and Ginsburg recognize that sectarian prayer to open governmental events is problematic, Justice Sotomayor focused on the impossibility of defining any prayer as “non-sectarian” and the issue of coercion (as did Kagan later on), and Justices Kennedy and Roberts (!) narrowed in on skepticism about the argument that it was allowed in the Marsh case because it was “historical” or “tradition” (i.e. the prayer/invocation had been done for a long time, therefore it was somehow acceptable?).

And I certainly got the impression that Justice Breyer was indicating he was an atheist, or at least agnostic (see pages 18-19).

Justices Alito, Scalia and (to a lesser degree) Roberts then focused on the impossibility of defining a prayer that would be acceptable to all religions (or people of no religion). And that’s certainly the right set of questions to ask: since there’s no way to please everyone’s religion, why not realize that there’s no real point in having an official prayer to open a governmental function, and definitely no requirement at all to do so, therefore just get rid of it? If people want to pray to their personal deity, have them do it in their own personal time. They were certainly asking the right questions, if perhaps being led to different conclusions.

But the rest of the discussion seemed to veer towards showing how when the court meddles in this kind of religious issue everyone seems to get angry and agitated (as Justice Kagan notes), and at that point everyone seemed to agree that they’d prefer that this issue would just go away, but that thanks to Marsh it won’t. I got the impression that several of the Justices really recognized that there is an issue here that has no easy resolution if prayer is allowed in some legislative sessions and perhaps not in others, and no easy way to reconcile various precedents with a consistent approach that sets a strict line. Except of course the clear line of doing the unpopular thing and prohibiting prayer in governmental functions, at which point the same people who constantly complain that children aren’t allowed to pray in public schools (which is untrue) would complain even louder.

Sounds to me like the Justices are going to find a way to rule in the most extremely narrow way possible, to affect this case and only this case, in order to avoid any ruling that could be used as precedent over establishing a formal line on what constitutes “too much” government involvement in religion.

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