My friend Rick Garnett has an extremely sensible post about the legislative prayer case, Town of Greece v. Galloway, which will be heard this term by the Supreme Court. A bit from Rick’s analysis:
[J]udges evaluate, and sometimes disallow, policies that majorities considered, argued about, and embraced. Because, again, majority rule is the usual way we go about political decisionmaking, this evaluation and – especially! – disallowing is a big deal, and it’s important that the work of judicial review be done right. Whether or not it is depends, I suggest, on (at least) three related variables: First, identifying, as correctly as possible, the judicially enforceable meaning of the constitutional text in question; second, the prudent design and development of workable doctrines that courts can use to decide real-world cases; and third, affording the appropriate deference, if any, to those actors whose decisions are being reviewed and who, presumably, decided that those decisions were constitutionally sound . . . .
[T]he Court can aspire to do well with respect to…doctrine and deference. The court of appeals, its opinion states, saw “no test-related substitute for the exercise of legal judgment” and it characterized the case as a “fact-intensive” one “which def[ies] exact legal formulas[.]” In the end, though, it couched its decision in “endorsement test” terms, and reported that “several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials,” supported the conclusion that “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.” But neither throwing aside doctrines and tests in favor of “legal judgment” nor engaging in unstructured speculation, however “contextual,” regarding imagined reactions, impressions, and beliefs that “can give only limited guidance to municipalities that wish to maintain a legislative prayer practice” is a sensible or appropriately deferential way for a reviewing court to play its role. A relatively clear, historically rooted standard, the tool employed in the Marsh case, works better, and is the more consistent justification for judicial review.
Of course, not all permissible practices are best practices or even good ideas. Even if the court of appeals reached the wrong conclusion, in an unsatisfying way, about what the Constitution allows, its suggestion to towns that they “pause and think carefully before adopting legislative prayer” is sound advice. Although it is true that many of us – and, in many places, most of us – believe that it is both appropriate and right to seek God’s help with the important business of living together and well in political communities, it is also true that ours is a religiously pluralist society that is becoming more so. In such a society, as the American Jesuit scholar, John Courtney Murray, wrote, “[men and women] of all religions and of no religions must live together in conditions of justice, peace, and civic friendship.” The line that separates policies that build up this friendship from those that tear it down is important, even if judicial review is not always the best way to find it.
Rick’s post is part of an on-line symposium at SCOTUSblog discussing various features of the case; the other posts may be found here.
For what it’s worth, I think the most interesting thing about the case does not concern legislative prayer itself, but the fate of the endorsement test, though this is not an issue that the Court would need to reach if it finds itself in a minimalist mood.