Thoughts on the arguments in Town of Greece

The Supreme Court heard arguments today in the case of Town of Greece v. Galloway and considered whether opening a Town Board meeting with a short prayer violates the First Amendment’s ban on establishments of religion.  The transcript of the oral argument is here.  If I were the lawyers, I'd probably be a bit frustrated by the fact that the justices made it so difficult -- and not because their questions were so insightful or to-the-chase-cutting -- to develop their lines of argument.  But, that's what oral arguments have become.  (Maybe, if more justices followed Justice Thomas's example . . . but I digress.)

As I see it, the lawyers’ arguments and the justices’ questions strongly suggest that the Court will continue to allow legislative prayers, without requiring close judicial scrutiny of particular prayers' content, and will also avoid any dramatic changes to its rules and doctrines.  I don't think the possibility of jettisoning the "endorsement test" even came up.

 The Court held 30 years ago that legislative prayer is constitutionally permissible, and today’s arguments provide no reasons to think the justices are about to change their minds.  As I read it, a majority of the justices seemed to agree that, given the longstanding and widespread tradition of opening legislative sessions with prayer, it would be both inappropriate and strange to announce, at this late date, that this practice is unconstitutionally coercive.  And, the justices clearly had serious reservations about getting into the business of closely examining particular prayers to make sure they are sufficiently "non-sectarian", or to draw a constitutional line between prayers that invoke "the Almighty" or "Heavenly Father" and ones that invoke "Jesus Christ" or "Allah.”  (It seems to me, as a moral matter, and as a matter of basic decency, those who deliver prayers in public or official settings should keep things fairly "non-sectarian," but I don't think the Constitution requires that every legislative prayer that's delivered be "non-sectarian.") 

 Justice Kagan’s said, near the end of the argument session, that “every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”  This observation, I thought, probably reflects a concern that is probably shared by a majority of the justices, who will almost certainly want to avoid making its Establishment Clause doctrine more confusing and the job of trial court judges more difficult.  And, there are two ways to avoid doing this:  First, ban all legislative prayer, and second, re-affirm the Court’s earlier decision that broadly upholds the practice as deeply rooted in our traditions and practices.  It seems more likely that they'll take the second route.