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Tuesday, May 21, 2013

Courts - Still more on "SCOTUS Takes Case on Prayer at Town Board Meetings"

Updating yesterday's ILB entry, that includes links to prior coverage of the Indiana legislative prayer case, Dan Carden reports today in the NWI Times, in a story headed "Prayer case set for U.S. Supreme Court similar to Ind. House dispute."

Carden reports that Attorney General Zoeller, on behalf of the State of Indiana, filed an amicus brief with the SCOTUS, signed by a number of other states, urging
the Court to hear the appeal of the Town of Greece, New York:

... to review a federal appellate court decision prohibiting the town of Greece, N.Y., from beginning its Town Board meetings with a prayer led by a consistently Christian "chaplain of the month."

The 2nd U.S. Circuit Court of Appeals ruled in May 2012 the practice suggests an "official affiliation with a particular religion," in violation of the U.S. Constitution's ban on the establishment of a state religion. * * *

"We're fearing a federal government, or a state government, establishing a specific religion and it hasn't happened over all the history and tradition and it's unlikely to in the future," Zoeller said. "So should we really be so technically oriented?"

Zoeller said other states look to Indiana to lead on this question based on its experiences in court battles that ultimately preserved prayer prior to sessions of the Indiana House.

In 2005, a federal judge in Indianapolis decreed the House's almost entirely Christian, and sometimes proselytizing, prayers were an unconstitutional endorsement of a particular religion, notwithstanding a 1983 U.S. Supreme Court ruling granting special status to legislative prayer.

The decision was condemned by House Speaker Brian Bosma, R-Indianapolis, Republican Gov. Mitch Daniels and Indiana's Republican members of Congress, including current Gov. Mike Pence, who responded by trying to deny federal courts the authority to rule in any future case involving legislative prayer.

The 7th U.S. Circuit Court of Appeals struck down the no-prayer decision in 2007 by finding the four plaintiffs, who sued over the cost of legislative time used by state-sanctioned prayer, were not sufficiently harmed to bring the lawsuit.

The appeals court never ruled on whether legislative prayer constitutes unconstitutional government endorsement of a particular religion.

Seeking to avoid future lawsuits, the House rearranged its schedule and the prayer is currently conducted prior to the chamber's officially being called to order each afternoon.

Lawmakers who believe the daily session shouldn't begin with a prayer typically refrain from entering the House until the prayer is completed.

Across the rotunda, the Indiana Senate still comes to order and is then led in prayer, usually by a Christian visiting minister. Senate prayers during the 2013 session lasted up to 10 minutes and personal requests to Jesus were common.

State Sen. Karen Tallian, D-Ogden Dunes, said she and several other senators keep track of the overtly Christian nature of the Senate prayers, which she contends are unconstitutional.

"I believe that Thomas Jefferson meant it when he said we should have separation of church and state, and that is a more long-lasting tradition than any other tradition in this country," Tallian said.

She also questions why Zoeller is using state resources to advocate positions in federal courts the legislature hasn't instructed him to take.

"That seems a little over-the-top to me. I don't think he has any business doing that," Tallian said. "It shouldn't be his bailiwick to defend cases from other states. He certainly has enough things going on in the state of Indiana."

Here is the SCOTUSblog case page on Town of Greece v. Galloway. Among the amicus curiae briefs listed, here is that of the State of Indiana. Indiana is joined on the brief by the states of Alabama, Arizona, Arkansas, Colorado, Florida, Idaho, Kansas, Michigan, Mississippi, Montana, Nebraska, New Mexico, Oklahoma, South Carolina, Texas, Utah, and Virginia.

Lyle Denniston of SCOTUSblog has this report on the grant. Some quotes:

The Supreme Court’s agreement to review the decision might be interpreted as an indication that the Justices could be preparing to make a major pronouncement on religion in the public sphere, but it also might be understood as an intent to focus solely on the specific facts of the practice as it unfolded in this one community.

As the case develops, though, it almost certainly will draw wide interest from advocacy organizations and religious entities, if for no other reason than the Court has not examined the specific question in some thirty years. Eighteen states had joined in urging the Court to grant review of the new case.

In the 1983 decision in Marsh v. Chambers, the Supreme Court upheld an opening prayer tradition at the Nebraska state legislature. It did so, however, by relying solely upon the tradition of legislative opening prayers that Congress had followed since the Founding era. In asking the Supreme Court to return to the issue, the town of Greece argued that the lower courts have divided deeply over the constitutional standards to be applied to judge such prayer exercises.

Since 1983, the Court has decided only two cases involving prayer as an issue in church-state relations, and both of those cases found invalid prayers that appeared to be sponsored by public school officials — at graduation ceremonies in a 1992 decision, and at a school football game in 2000.

While the Court granted the new case from the town of Greece after its first examination of the town’s petition, the Court took no action once again — after considering it a seventh time — on another case involving religion in the public sphere. At issue in the case of Elmbrook School District v. Doe (12-755) is the constitutionality of holding a high school graduation ceremony in a church. There has been no explanation of what the Court is doing with that case.

ILB: Elmbrook is a 7th Circuit decision; see earlier ILB posts.

Denniston has a second article on Town of Greece today, on Constitution Daily.

Posted by Marcia Oddi on May 21, 2013 08:52 AM
Posted to Courts in general