{"id":7108,"date":"2013-11-03T19:40:58","date_gmt":"2013-11-04T00:40:58","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=7108"},"modified":"2013-11-05T11:21:12","modified_gmt":"2013-11-05T16:21:12","slug":"an-introduction-to-town-of-greece-v-galloway","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/an-introduction-to-town-of-greece-v-galloway\/","title":{"rendered":"An Introduction to Town of Greece v. Galloway"},"content":{"rendered":"

On Wednesday, 10\/30, Mr. Aaron Street, a Partner at Baker Botts LLP, and Noah Feldman, Bemis Professor of International Law, met to discuss the case\u00a0Town of Greece v. Galloway<\/em>, which is slated to have oral argument on November 6th in the Supreme Court.<\/p>\n

Mr. Aaron Streett<\/p>\n

Mr. Streett began by noticing the characteristics of Greece, NY.\u00a0 It\u2019s a small town in upstate NY that\u2019s predominantly Christian.\u00a0 The town had a policy starting in 1990s with a volunteer chaplain program. Any clergy in the community could offer to be the chaplain and give a prayer to open the town council meetings. \u00a0As a result of the town\u2019s make-up, most of these clergy were Christian. \u00a0Mr. Streett noted that there is no indication of discrimination against non-Christians.\u00a0 The problem for lower courts was that most prayers were given in Jesus\u2019s name.<\/p>\n

According to Mr. Streett, at first glance, this case looks like a no brainer.\u00a0 If you read Marsh v. Chambers<\/em> from 1982, Nebraska\u2019s plan of a chaplain for the legislature, paid out of state funds, was constitutional, even though that chaplain was Christian.\u00a0 The facts about Marsh<\/em> \u2013 Surpreme Court upheld Nebraska\u2019s prayer policy on an originalist basis.\u00a0 Chief Justice Burger made the argument that around the time the 1st<\/sup> Amendment was passed, Congress established a Congressional chaplain.\u00a0 If this specific practice was approved by the people who created the 1st<\/sup> Amendment, then it must be constitutional.\u00a0 The test devised by the court was whether the practice disparages any religion, or proselytizes any religion.\u00a0 Court also said that they were not going to parse through the language of the prayer \u2013 they are just going to look to see if there\u2019s disparagement, proselytization, or advancement. \u00a0What do you look at? The structure of the prayer policy? Or a glance at the content of the prayers?\u00a0 Mr. Street noted that there\u2019s an interesting footnote in Marsh<\/em> \u2013 At a certain point, the Reverend stopped saying \u201cJesus\u201d after a Jewish representative stated that he was uncomfortable with the practice.<\/p>\n

The lower courts said in Greece <\/em>have said that if you say anything that\u2019s sectarian, then it\u2019s unconstitutional. This gained credence in County of Allegheny<\/em>, which was a menorah and nativity scence case, where Justice Blackmun said that monuments are ok if they\u2019re not sectarian.\u00a0 2nd<\/sup> circuit in Greece<\/em> said the Lemon Test doesn\u2019t apply.\u00a0 Judge Calabresi applied the Endorsement Test \u2013 which asks whether to a reasonable observer whether the prayer endorses Christianity. \u00a0Judge Calabresi read later cases as de facto overruling Marsh<\/em>.\u00a0 He added that the prayers in Greece<\/em> were sectarian \u2013and therefore a reasonable observer would combine the town and Christianity.\u00a0 However, Mr. Streett noted that the Solicitor General has said this is constitutional.<\/p>\n

Town of Greece\u2019s brief has a narrow argument that this fits exactly under Marsh. Just look at the practice to see if it lends to disparagement of proselytization.\u00a0 Mr. Streett noted that this would be a significant win, and would clarify the situation to towns who worry about ACLU.\u00a0\u00a0 The second argument in the Town of Greece\u2019s brief is a broad argument \u2013 this would be a proper case for the SC to jettison the Endorsement test because it\u2019s not compatible with the origin of the Constitution.\u00a0 What knowledge does a reasonable observer have? \u00a0The brief argues that it should be replaced with a Coercion Test \u2013 you were being coerced to be into religious enterprises, or taxed for religion.\u00a0 \u00a0Mr. Streett thinks this test is persuasive to a majority of the court.\u00a0 He noted that the court got close to this in Lee v. Weisman<\/em>\u2013 Justice Kennedy said that he didn\u2019t like endorsement, and he said that he found coercion was here.\u00a0\u00a0 He ended by stating that if the Court was to throw out Endorsement Test, then that would be a groundbreaking opinion allowing for most religious displays being upheld.<\/p>\n

 <\/p>\n

Professor Noah Feldman<\/p>\n

Professor Feldman began by saying that legislative prayer is \u201cweird\u201d as a doctrinal matter.\u00a0 He noted that the first law review article he wrote argued on originalist grounds that establishment clause meant no coercion and no state money.\u00a0 However, he stated, even in that framework, legislative chaplains, as in Marsh<\/em>, were a problem because they were paid.\u00a0 According to Professor Feldman, years later, James Madison was asked about legislative chaplains and he said that they shouldn\u2019t have established the chaplain.\u00a0 Professor Feldman stated that Marsh<\/em>\u2019s argument is not quite right \u2013 what is right about Marsh was that the Court was unwilling to break the social practice, but doctrinally, Marsh<\/em> radically contradicts all established theories of the establishment clause.\u00a0 He noted that the Court completely ignores the Lemon test in Marsh<\/em>.<\/p>\n

As for the endorsement test, Professor Feldman said that if it means anything at all, that is what is happening in Town of Greece<\/em> \u2013 It\u2019s endorsing religion, as that\u2019s the point of a prayer, and legislative prayer obviously violates it too.\u00a0 Regarding historical tradition, he stated he was sure the framers would\u2019ve been ok with Town of Greece because no one is punished for not participating. The case does raise the issue of whether non-physical coercion can still count for coercion for grown-ups.\u00a0 Regarding Justice Kennedy in Weisman<\/em>, Kennedy said it was coercion for middle school graduation.\u00a0 Professor Feldman noted that this is not strictly true because one doesn\u2019t have to go to the ceremony to graduate.<\/p>\n

Professor Feldman said that the main question is whether the people coerced in this case.\u00a0 In this case, people are attending who want a variance from the town board.\u00a0 Apparently, if the individuals are not there when the meeting starts, then they\u2019re not going to get listened to. \u00a0Professor Feldman asked you to imagine you\u2019re the dissenter at the council meeting: What do you do? The message is that you\u2019re not going to get what I want from the legislative body.\u00a0 Professor Feldman said this is the best argument for Galloway.\u00a0 Professor Feldman noted that this argument depends on Justice Kennedy saying the particular circumstances are such that requires psychological coercion. \u00a0Justice Kennedy has never taken coercion outside the front of children, but he has never explicitly said that Weisman <\/em>was only about children. \u00a0According to Professor Feldman, doctrinally, the case should go for the town, unless Galloway can get the coercion point in.<\/p>\n

Professor Feldman then discussed the political aspect of the case.\u00a0 He said that when it comes to politics, sectarianism has a huge wave based on the waves of diversity in our country.\u00a0 The Second Awakening created diversity of denominations. This led to disestablishment at the state level because there became diversity.\u00a0 Then you had significant Catholic immigration \u2013 which created the fight over the state paying for Catholic schools.\u00a0 This arose from the diversity that existed.\u00a0 Professor Feldman stated that the case of legislative prayer is a leftover archaism that the court never struck down.\u00a0 According to Professor Feldman, to the extent something functions as an archaism, the court doesn\u2019t like to strike it down.\u00a0 The political question \u2013 what happens if the prayer is conceived not as archaic, but as a politico-religious movement? \u00a0Professor Feldman said that the Court is not ready to introduce school prayer if the endorsement test is struck down because the Court knows that the advocates in this case want school prayer in the background of this case.\u00a0 He noted that this is Chief Justice Robert\u2019s signature move \u2013 sophisticated lawyering to mask value position.\u00a0 Push the case to see if it\u2019s archaic.\u00a0 If not archaic, then Court will be hesitant to change the dominant socio-political culture since 1960s.<\/p>\n

 <\/p>\n

Mr. Aaron Streett<\/p>\n

Mr. Streett urged that the \u201cleftover archaism\u201d should be framed to see whether it comports with the original understanding.\u00a0 According to Mr. Street, the Lemon Test and the Endorsement Test have no basis in the Constitution.\u00a0 He believes that the chaplain in legislature is \u201csolemnizing\u201d the proceeding \u2013 not proselytizing.\u00a0 Mr. Streett noted that if you\u2019re going to be a hardcore originalist, then you can arguably say that there was an exception to the taxpayer rational because Congress allocated money to proselytize the Indians in the Northwest Ordinance.\u00a0 There\u2019s a small exception regarding chaplains, military chaplains, people who counsel people.\u00a0 Mr. Street compared this exception to the Marshall of the Supreme Court, who says \u201cGod save this Court.\u201d\u00a0 He agreed that their best argument is the non-physical coercion on the particulars of this case, but Mr. Streett said he has a problem with basing an establishment on an individual\u2019s decision to feel a certain way.\u00a0 He urged that the appropriate target is what the government is trying to do, although he noted that the argument gets trickier if you say that the Council will deny a variance is if an individual does not stay for the chaplain.<\/p>\n","protected":false},"excerpt":{"rendered":"

On Wednesday, 10\/30, Mr. Aaron Street, a Partner at Baker Botts LLP, and Noah Feldman, Bemis Professor of International Law, 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