Want to Understand the Possible Implications of the Legislative Prayer Case?

Then you should read these two posts by Kevin Walsh.

In the first post, Kevin explains the way in which Justice Kagan’s dissent lines up in important ways with the views of Judge J. Harvie Wilkinson in his opinion for the Fourth Circuit in Joyner v. Forsyth County (Justice Kagan explicitly relies on some language in Joyner, but the similarities in outlook run deep).

The second post discusses a pending cert. petition–the Elmbrook School District case out of the Seventh Circuit in which Judges Easterbrook, Posner, and Ripple authored dissents from the court’s en banc opinion–and what might happen to it in light of the Court’s holding in Greece.

Both issues are discussed at length in the article that Kevin and I wrote together–Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory (see in particular Parts I(B) and II(C)). You should read that too!

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4 responses to “Want to Understand the Possible Implications of the Legislative Prayer Case?

  1. I have never gotten the link between Elmbrook and the legislative prayer cases. Kids != legislators, and I thought Town of Greece did a pretty good job of laying out that distinction. The historical tradition starting with Duche (the Traitor) is distinctive and has nothing to do with schools. The closest overlap you get is Lee v. Weisman, and we’re all seeing how tenuous that linkage is. School prayer seems to be a completely different animal to me.

    Can someone sketch out the logical progression for blending the two lines of jurisprudence?

  2. Jeremy, you are right that there are some factual distinctions in the cases. The argument for the possible effect of Greece on Elmbrook has been put in this brief: http://www.becketfund.org/wp-content/uploads/2014/05/No-12-755-Elmbrook-Supplement-Brief.pdf

    We will have to see whether review is granted, or the case is GVR’d, or instead whether the petition is denied.

  3. Thanks for pointing me to the filing, Marc. I see it better now–government use of a religious space compared to a religious practice in government space–but I think I founder on the “kids are just different” issue: it isn’t just factual, it changes the relevant law. I also see Town of Greece as relying so much on the singular tradition behind legislative prayer–indeed, that’s now the sole test for whether a given legislative prayer practice is unconstitutional–that I’m not sure how far it will carry outside of that context.

    That said, I don’t think the petition needs Town of Greece for strength: it raises plenty of solid questions on its own. Town of Greece adds some useful tendencies at the briefing stage and does lend support to the merits argument.

    And to add a provocative answer to the headline question: My bet for the next ripples from Town of Greece are monuments/creches on government grounds (i.e., very slow, very quiet chaplains), and the background question of standing to raise an Establishment Clause challenge at all.

  4. Jeremy, all strong and sensible points. Thanks. Marc

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