On Wednesday, 10/30, Mr. Aaron Street, a Partner at Baker Botts LLP, and Noah Feldman, Bemis Professor of International Law, met to discuss the case Town of Greece v. Galloway, which is slated to have oral argument on November 6th in the Supreme Court.

Mr. Aaron Streett

Mr. Streett began by noticing the characteristics of Greece, NY.  It’s a small town in upstate NY that’s predominantly Christian.  The town had a policy starting in 1990s with a volunteer chaplain program. Any clergy in the community could offer to be the chaplain and give a prayer to open the town council meetings.  As a result of the town’s make-up, most of these clergy were Christian.  Mr. Streett noted that there is no indication of discrimination against non-Christians.  The problem for lower courts was that most prayers were given in Jesus’s name.

According to Mr. Streett, at first glance, this case looks like a no brainer.  If you read Marsh v. Chambers from 1982, Nebraska’s plan of a chaplain for the legislature, paid out of state funds, was constitutional, even though that chaplain was Christian.  The facts about Marsh – Surpreme Court upheld Nebraska’s prayer policy on an originalist basis.  Chief Justice Burger made the argument that around the time the 1st Amendment was passed, Congress established a Congressional chaplain.  If this specific practice was approved by the people who created the 1st Amendment, then it must be constitutional.  The test devised by the court was whether the practice disparages any religion, or proselytizes any religion.  Court also said that they were not going to parse through the language of the prayer – they are just going to look to see if there’s disparagement, proselytization, or advancement.  What do you look at? The structure of the prayer policy? Or a glance at the content of the prayers?  Mr. Street noted that there’s an interesting footnote in Marsh – At a certain point, the Reverend stopped saying “Jesus” after a Jewish representative stated that he was uncomfortable with the practice.

The lower courts said in Greece have said that if you say anything that’s sectarian, then it’s unconstitutional. This gained credence in County of Allegheny, which was a menorah and nativity scence case, where Justice Blackmun said that monuments are ok if they’re not sectarian.  2nd circuit in Greece said the Lemon Test doesn’t apply.  Judge Calabresi applied the Endorsement Test – which asks whether to a reasonable observer whether the prayer endorses Christianity.  Judge Calabresi read later cases as de facto overruling Marsh.  He added that the prayers in Greece were sectarian –and therefore a reasonable observer would combine the town and Christianity.  However, Mr. Streett noted that the Solicitor General has said this is constitutional.

Town of Greece’s brief has a narrow argument that this fits exactly under Marsh. Just look at the practice to see if it lends to disparagement of proselytization.  Mr. Streett noted that this would be a significant win, and would clarify the situation to towns who worry about ACLU.   The second argument in the Town of Greece’s brief is a broad argument – this would be a proper case for the SC to jettison the Endorsement test because it’s not compatible with the origin of the Constitution.  What knowledge does a reasonable observer have?  The brief argues that it should be replaced with a Coercion Test – you were being coerced to be into religious enterprises, or taxed for religion.   Mr. Streett thinks this test is persuasive to a majority of the court.  He noted that the court got close to this in Lee v. Weisman– Justice Kennedy said that he didn’t like endorsement, and he said that he found coercion was here.   He ended by stating that if the Court was to throw out Endorsement Test, then that would be a groundbreaking opinion allowing for most religious displays being upheld.


Professor Noah Feldman

Professor Feldman began by saying that legislative prayer is “weird” as a doctrinal matter.  He noted that the first law review article he wrote argued on originalist grounds that establishment clause meant no coercion and no state money.  However, he stated, even in that framework, legislative chaplains, as in Marsh, were a problem because they were paid.  According to Professor Feldman, years later, James Madison was asked about legislative chaplains and he said that they shouldn’t have established the chaplain.  Professor Feldman stated that Marsh’s argument is not quite right – what is right about Marsh was that the Court was unwilling to break the social practice, but doctrinally, Marsh radically contradicts all established theories of the establishment clause.  He noted that the Court completely ignores the Lemon test in Marsh.

As for the endorsement test, Professor Feldman said that if it means anything at all, that is what is happening in Town of Greece – It’s endorsing religion, as that’s the point of a prayer, and legislative prayer obviously violates it too.  Regarding historical tradition, he stated he was sure the framers would’ve been ok with Town of Greece because no one is punished for not participating. The case does raise the issue of whether non-physical coercion can still count for coercion for grown-ups.  Regarding Justice Kennedy in Weisman, Kennedy said it was coercion for middle school graduation.  Professor Feldman noted that this is not strictly true because one doesn’t have to go to the ceremony to graduate.

Professor Feldman said that the main question is whether the people coerced in this case.  In this case, people are attending who want a variance from the town board.  Apparently, if the individuals are not there when the meeting starts, then they’re not going to get listened to.  Professor Feldman asked you to imagine you’re the dissenter at the council meeting: What do you do? The message is that you’re not going to get what I want from the legislative body.  Professor Feldman said this is the best argument for Galloway.  Professor Feldman noted that this argument depends on Justice Kennedy saying the particular circumstances are such that requires psychological coercion.  Justice Kennedy has never taken coercion outside the front of children, but he has never explicitly said that Weisman was only about children.  According to Professor Feldman, doctrinally, the case should go for the town, unless Galloway can get the coercion point in.

Professor Feldman then discussed the political aspect of the case.  He said that when it comes to politics, sectarianism has a huge wave based on the waves of diversity in our country.  The Second Awakening created diversity of denominations. This led to disestablishment at the state level because there became diversity.  Then you had significant Catholic immigration – which created the fight over the state paying for Catholic schools.  This arose from the diversity that existed.  Professor Feldman stated that the case of legislative prayer is a leftover archaism that the court never struck down.  According to Professor Feldman, to the extent something functions as an archaism, the court doesn’t like to strike it down.  The political question – what happens if the prayer is conceived not as archaic, but as a politico-religious movement?  Professor Feldman said that the Court is not ready to introduce school prayer if the endorsement test is struck down because the Court knows that the advocates in this case want school prayer in the background of this case.  He noted that this is Chief Justice Robert’s signature move – sophisticated lawyering to mask value position.  Push the case to see if it’s archaic.  If not archaic, then Court will be hesitant to change the dominant socio-political culture since 1960s.


Mr. Aaron Streett

Mr. Streett urged that the “leftover archaism” should be framed to see whether it comports with the original understanding.  According to Mr. Street, the Lemon Test and the Endorsement Test have no basis in the Constitution.  He believes that the chaplain in legislature is “solemnizing” the proceeding – not proselytizing.  Mr. Streett noted that if you’re going to be a hardcore originalist, then you can arguably say that there was an exception to the taxpayer rational because Congress allocated money to proselytize the Indians in the Northwest Ordinance.  There’s a small exception regarding chaplains, military chaplains, people who counsel people.  Mr. Street compared this exception to the Marshall of the Supreme Court, who says “God save this Court.”  He agreed that their best argument is the non-physical coercion on the particulars of this case, but Mr. Streett said he has a problem with basing an establishment on an individual’s decision to feel a certain way.  He urged that the appropriate target is what the government is trying to do, although he noted that the argument gets trickier if you say that the Council will deny a variance is if an individual does not stay for the chaplain.