Analysis Law and Policy

Reason for Concern as Roberts Court Agrees to Hear Government Prayer Case

Jessica Mason Pieklo

The next Supreme Court term could be historic in re-defining religious liberty.

With decisions in such high profile cases as challenges to the Voting Rights Act, affirmative action, and same-sex marriage still looming, the Roberts Court is showing no signs of stepping out of the culture wars. If anything, agreeing to hear a case on the constitutionality of saying prayers at the opening of a government meeting suggests the court plans to wade in deeper.

The case of Town of Greece v. Galloway is one of a handful of newly granted cases the court will hear and decide in the term that begins next October. It’s been 30 years since the Supreme Court took up the issue of government prayer, and with religious liberty challenges to the contraception mandate churning through the federal district and now appellate courts, and a growing cadre of possible challenges to Roe v. Wade following close behind, it’s clear one lasting legacy of the Roberts court will be its role in the right’s crusade to radically re-define the nature of religious liberty interests in this country.

In 1999 the town of Greece, New York, started having local clergy recite prayers to start town board public meetings. These clergy members were mostly leaders of Christian congregations in the city of about 100,000. The practice continued until 2010, when two local residents challenged the prayer ritual. Americans United for Separation of Church and State, an organization that promotes the separation of church and state, brought the litigation on behalf of two community residents, Susan Galloway and Linda Stephens. They objected to the Greece Town Board’s practice of inviting clergy to open its meetings with sectarian prayers. The board does not require that the invocations be inclusive and non-sectarian. As a result, the prayers have almost always been Christian. Official records showed that between 1999 and 2010, about two-thirds of the 120 recorded invocations contained references to “Jesus Christ,” “Jesus,” “Your Son” or the “Holy Spirit.”

The town appealed, and in a unanimous May 2012 decision a three-judge panel of the U.S. Second Circuit Court of Appeals ruled against the town’s prayer policy. Judge Guido Calabresi said that “a given legislative prayer practice, viewed in its entirety, may not advance a single religious sect.” The decision emphasized that, in the situation in Greece, the overall impression of the practice was that it was dominated by Christian clergy and specific expressions of Christian beliefs, and that the town officials took no steps to try to dispel that impression.

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Alliance Defending Freedom, an Arizona-based Christian non-profit group, appealed the case to the Supreme Court, and 49 mostly Republican members of Congress and 18 state attorneys general joined in to support the appeal with amicus briefs; the goal was to greatly expand the intermingling of government and religion.

Agreeing to review the decision is troubling and could be seen as a signal that the justices are preparing to make a major decision on religion in the public sphere. That signal is only amplified when you look at the other major cases raising issues of religious liberty headed for the court. What kind of pronouncement could the Roberts court be looking to make? The last time the Supreme Court looked at the issue of government-sponsored prayer was in 1983, in Marsh v. Chambers. In that case, the Supreme Court upheld an opening prayer tradition at the Nebraska state legislature. But it did so not by ruling on the constitutionality of the prayer tradition per se, but by relying solely on the tradition of legislative opening prayers that Congress had followed since this nation’s founding. That has left unclear the level of constitutional standards to be applied when judging these kinds of prayer exercises, a point pushed by conservatives when urging the court to take up the case who noted lower courts have applied seemingly different standards when determining whether or not a particular prayer practice violates the Establishment Clause. It could be the Roberts Court views this case as an opportunity to rule on that scrutiny in a way that offers broad protection for government prayer under the guise of “tradition,” an opportunity likely too good for the conservative wing to pass up.

Since 1983, the court has decided only two cases involving prayer as an issue in church-state boundaries, and both of those cases invalidated 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. But that was a different court, one without a chief justice who was groomed in the culture wars by Ed Meese, and without even the vitriolic and devoutly Catholic Antonin Scalia and Samuel Alito. There’s no reason to think, on the issue of government prayer, that precedent matters here any more than it did to these justices when they wrote the Citizens United decision.

News Law and Policy

Roberts Court Refuses to Hear North Carolina Forced Ultrasound Case

Jessica Mason Pieklo

Monday's refusal by the Roberts Court leaves in place a federal appeals court decision that ruled the law violated the First Amendment rights of practitioners.

Reproductive rights advocates scored a major victory Monday as the United States Supreme Court refused to review a decision blocking a North Carolina forced ultrasound law considered among the most extreme in the nation.

The GOP-led North Carolina General Assembly passed the coercive ultrasound law in 2011 over the veto of then-Gov. Bev Perdue. The law requires that a physician (or qualified technician) must perform an ultrasound on a patient seeking an abortion at least four hours, and no more than 72 hours, before the patient has an abortion.

Under the law, the physician or technician must display and describe the ultrasound image when the patient objects, and even when the patient seeks to avoid the state-mandated speech by covering her eyes and ears, which the statute allows.

The law also makes no exception for rape, incest, serious health risks to the patients, or severe fetal anomalies.

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A federal court in October 2011 preliminarily blocked the law from taking effect while a trial challenging its constitutionality proceeded.

In December 2014, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit affirmed an earlier decision permanently blocking the ultrasound law from taking effect, ruling the law violates the First Amendment rights of physicians by forcing them to deliver politically motivated communications to a patient, over the patient’s objection.

The unanimous decision by a three-judge panel ruled that “transforming the physician into the mouthpiece of the state undermines the trust that is necessary for facilitating healthy doctor-patient relationships and, through them, successful treatment outcomes.”

“She must endure the embarrassing spectacle of averting her eyes and covering her ears while her physiciana person to whom she should be encouraged to listen—recites information to her. We can perceive no benefit to state interests from walling off patients and physicians in a manner antithetical to the very communication that lies at the heart of the informed consent process,” wrote the Fourth Circuit in December.

Attorneys for the State of North Carolina appealed that decision to the Roberts Court, arguing it conflicts with other federal appellate court decisions upholding mandatory ultrasound laws in South Dakota and Texas.

The Roberts Court gave no explanation for its refusal to hear the case, though in the order denying review, Justice Antonin Scalia dissented, but without filing an opinion explaining the grounds for his dissent.

“Doctors shouldn’t be forced to humiliate a woman and disregard their best medical judgment in order to provide an abortion,” Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project, said in a statement following the opinion. “The purpose of this law was crystal clear: to shame a woman who has decided to have an abortion out of getting one. In this country, it’s not OK to turn doctors into the mouthpieces of politicians in order to make a woman feel bad about her decision.”

Monday’s decision marks the second time the Roberts Court has refused to step into the fight over mandatory ultrasound laws. The Court in in November 2013 refused to review a similar law from Oklahoma. That decision by the Roberts Court left in place a ruling from the Oklahoma Supreme Court permanently blocking the measure as unconstitutional.

News Law and Policy

New York Town Changes Prayer Policy After Supreme Court Victory

Jessica Mason Pieklo

The new policy in Greece, New York, appears to cut out non-Christians and atheists from opening town meetings with an invocation.

In May, a closely divided U.S. Supreme Court ruled the town of Greece,New York’s policy of opening town meetings with sectarian prayer did not violate the First Amendment’s Establishment Clause because, despite most invocations coming from Christians, the policy provided that both clergy and laypersons could deliver the invocation.

Therefore, the town argued, the policy didn’t discriminate and allowed anyone to participate.

Town officials, in the wake of that legal victory, issued a new policy that appears to test the limits of that Supreme Court ruling and make it difficult, if not impossible, for non-Christians to offer the invocation.

According to the new policy, released as part of a Freedom of Information Act request by the Center for Inquiry, “[t]he invocation shall be voluntarily delivered by an appointed representative of an Assemblies List for the Town of Greece.”

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That list will be compiled by the clerk of the town board, and will consist of “assemblies with an established presence in the Town of Greece that regularly meet for the primary purpose of sharing a religious perspective.” The “Assemblies List” will consist of “all ‘churches,’ ‘synagogues,’ ‘congregations,’ ‘temples,’ ‘mosques’ or other religious assemblies in the Town of Greece.”

The town’s new rules make no mention of whether or not an assembly of people like atheists that lack a “religious perspective” would be allowed to participate.

Greg Lipper, senior litigation attorney for Americans United for the Separation of Church and State, one of the groups that challenged the town of Greece’s initial invocation policy, called the change of policy a “gigantic bait and switch.”

According to Lipper, the record developed in the first legal challenge showed that while many non-Christians live in Greece, New York, their houses of worship are located outside the town, which would appear to exclude them from the “Assemblies List” to be promulgated under the new policy.

The policy allows residents to request in writing that the leader of their out-of-town house of worship come in and deliver the invocation, but that imposes a burden on those residents who live in Greece but worship elsewhere, Lipper said.

“What it prevents from happening is non-Christians in the town who simply want to deliver the invocation themselves being frozen out of the process, and that means that to the extent you are going to have religious diversity that religious diversity is excluded,” he said.

In July, an atheist delivered the first-ever secular invocation for the town of Greece. Lipper said it appears that person would be ineligible from delivering that same invocation under this new policy because he’s not part of a house of worship. The new policy appears to be based on a model policy devised this summer by the Alliance Defending Freedom, a conservative legal advocacy organization that defended the town of Greece’s initial policy, said Lipper.

“The way this policy is designed really makes sense only if your goal is to make it as difficult as possible for non-Christians to deliver an invocation,” Lipper added. “And the fact that it was devised about a month after the first ever secular invocation in the town of Greece makes it even more suspicious.”