By Mike Dorf
Last week, the SCOTUS granted cert in Town of Greece v. Galloway. The case presents the question whether the Town of Greece (near Rochester, NY) violates the Establishment Clause by beginning its town board meetings with an official prayer. The Second Circuit found a violation, although it did so on grounds that appear to be limited to the particular factual record. In light of Marsh v. Chambers--which upheld a state practice of beginning each legislative day with a prayer by an official chaplain on the ground that such prayers were part of a tradition going back to the Founding--the appeals court acknowledged that in general, opening the sessions of a town board with a prayer would not amount to an Establishment Clause violation.
The Second Circuit thus cabined its holding with numerous caveats. For example, the court said that sectarian prayers are not per se invalid. But given a longstanding pattern by which the town invited only Christian clergy to deliver the prayers (at least until the practice was challenged), an objective reasonable observer would infer that the Town of Greece was affiliated with Christianity. In short, under the "totality of the circumstances," the Second Circuit found a violation of what is sometimes called the "endorsement" test, which is itself a gloss on the "effects" prong of the Lemon test (announced in Lemon v. Kurtzman).
What will the Court do? The cert petition does not expressly ask the Court to overrule Lemon, but that is a possibility. It has been two decades since Justice Scalia likened the Lemon test to a "ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried." Lemon has long occupied a place in the Court's Establishment Clause jurisprudence similar to the place that Buckley v. Valeo occupies in its free speech jurisprudence: A majority of sitting Justices would like to overrule it but they can't agree on what would replace it, so it remains more or less the law.
Even if the Court in Town of Greece does not overrule Lemon itself, it could reject the "endorsement" test as an inappropriate gloss on the effects prong of Lemon. Lemon establishes a three-part test for validity under the Establishment Clause: (1) there must be "a secular legislative purpose"; (2) the law's "principal or primary effect must be one that neither advances nor inhibits religion"; and (3) the law "must not foster an excessive government entanglement with religion". Various Justices (but especially now-retired Justice O'Connor) have suggested that to apply the second prong, one should ask whether a reasonable observer would perceive the government as endorsing religion.
The endorsement test has been criticized by some liberals (like yours truly) as too permissive because, in positing an objective observer, it understates the extent to which the Establishment Clause should be interpreted to protect religious minorities (including nonbelievers) from feeling like second-class citizens on the basis of their religious affiliation (or non-affiliation). This sort of criticism accepts the idea of an endorsement test as the right way to understand the effects prong of Lemon but proposes that instead of positing a reasonable observer, we should posit a reasonable religious dissenter or nonbeliever.
It is highly unlikely that five Justices would vote to tighten the endorsement test in the way I have just suggested--in Town of Greece or any other case, at least given the Court's current composition. It is more likely that the Court would abandon the endorsement test entirely, because conservatives dislike the test on the ground that it is too restrictive. The mere perception of endorsement, they say, does not offend the values underlying the Religion Clauses. In this view, endorsements that fall short of coercing belief or affirmation by religious dissenters are permissible.
But I doubt that the Court would use Town of Greece as an opportunity to abandon the endorsement test on conservative grounds either. That's because there is a much simpler way for the Court to reverse the Second Circuit: It could simply say (as the cert petition and various amici argue) that since Marsh, legislative prayer (including for local governments like a town) are virtually per se permissible, without regard to Lemon. As the dissenters in Marsh complained, the Court there did not even pretend to apply its standard tests per Lemon.
Liberal critics of the Court's Establishment Clause jurisprudence (like me) should be hoping (praying?!) that the Court takes this last course. The seemingly unprincipled tradition-based exception for legislative prayer has the salutary effect of preserving the general principle in other contexts. An attempt to reconcile the permissibility of legislative prayer with the Establishment Clause precedents more broadly would probably end up weakening those precedents. The Court almost certainly granted cert with the goal of reversing the Second Circuit. Doing so in a way that strengthens the Marsh exception to Lemon would do the least damage to the principles of Lemon. Those principles themselves are weaker than what liberals like me would like to see, but any change that this Court would likely make would go in the wrong direction.