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DAVID L. HUDSON JR: Much to-do about history for divided high court

June 9, 2014

The U.S. Supreme Court remains deeply divided over the meaning of the first 10 words of the First Amendment — “Congress shall make no law respecting an establishment of religion.”
Last month, the Court ruled 5-4 in Town of Greece v. Galloway that a New York town’s practice of having prayer before town board meetings did not violate these 10 words, the establishment clause. History and tradition carried the day. The majority reasoned that because the first Congress — the Congress that ratified the First Amendment in the first place in 1791 — allowed legislative prayer, such prayer doesn’t violate the establishment clause now in the 21st century.
“That the First Congress provided for the appointment of a chaplain only days after approving language for the First Amendment demonstrates that the framers considered legislative prayer a benign acknowledgment of religion’s role in society,” wrote Justice Anthony Kennedy in his majority opinion.
Four members of the Court disagreed with the principal dissent authored by Justice Elena Kagan, who contrasted the Court’s upholding of chaplain prayer in the Nebraska Legislature in Marsh v. Chambers (1983) with the prayer practice at town council meetings in Greece, N.Y. Kagan emphasized that unlike the prayer practice in Congress or in the Nebraska Legislature, the prayers offered in the town of Greece are specifically directed at citizens. She contended that “Greece’s prayers cannot simply ride on the constitutional coattails of the legislative tradition Marsh described.”
Though reaching different outcomes, Justices Kennedy’s and Kagan’s opinions appeared to agree on certain points. Both acknowledged that history and tradition were important in the constitutional calculus. They also both realized that Marsh v. Chambers was the key precedent. They parted company on whether Greece’s practice comported with the history and tradition associated with legislative prayer.
It really should come as no surprise that the members of the Supreme Court remain deeply divided on church-state separation. The Court has a lengthy history of dividing 5-4 or 6-3 in establishment-clause cases. When the Court first extended the establishment clause to the states, in Everson v. Board of Education (1947), the justices split 5-4. Marsh v. Chambers was a 6-3 decision. The Court has approved of Nativity displays and school vouchers in 5-4 decisions. It has upheld and invalidated Ten Commandment displays in 5-4 rulings.
The Court’s latest establishment-clause decision simply continues the trend of sharp disagreement.

David L. Hudson Jr. is an expert in First Amendment issues who writes for firstamendmentcenter.org and for other publications. Hudson teaches law and was a scholar at the First Amendment Center.

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