ND Expert: SCOTUS ruled correctly on legislative prayer

Author: Denise Wager

The Supreme Court of the United States (SCOTUS) on Monday (May 5) handed down its decision in Town of Greece, NY v. Galloway and reversed the lower court’s ruling that the town’s legislative prayer policy violated the First Amendment.

University of Notre Dame Law Professor Richard W. Garnett, a former SCOTUS law clerk, says, “The court’s ruling is the correct one and does not come as a surprise. Most observers expected a majority of the justices to conclude that the town’s policy was consistent with longstanding American traditions and with the court’s own prior decisions. What is fairly surprising, though, is that four justices dissented.”

According to Garnett, “it would have been a dramatic and controversial move — a move that the administration, among others, argued against — to rule that legislative prayers are necessarily unconstitutional. And none of the Justices endorsed such a departure from past practices and rulings.

“As a result, though,” Garnett says, “the law in this area remains as muddled and difficult to apply has it has been for the past 30 years. Legislative prayers, even ones that are ‘sectarian,’ are permissible sometimes, depending on context and circumstances. Justices Thomas and Scalia’s separate opinions would have provided a brighter line, because they would have held that true ‘establishments’ of religion involve ‘actual legal coercion.’”

Garnett says although the court ruled correctly, it doesn’t mean the policy is wise and welcoming.

“The fact that the Constitution allows a practice does not mean that ‘We the People’ should adopt it, and much of what Justice Kagan says in her dissent is good advice to local officials. At the same time, it would not be consistent with the court’s appropriate role to require all non-coercive legislative prayer policies to comply with the case-by-case application by judges of vague and shifting ‘balancing tests.’

“While Justice Kagan is right to worry about religious strife and social division, the Constitution does not authorize the court to strike down policies and actions based on justices’ worries about, or predictions of, such division.”

Read more from Garnett on Legislative Prayer and Judicial Review here.