Is Supreme Court removing the wall between church and state?

Lyle Denniston says that the Supreme Court's Town of Greece ruling on Monday is actually a rather ambitious expansion of the court's 1983 decision on the issue of legislative prayer.

"Not only did the [Supreme] Court uphold the centuries-old practice of legislative prayer, it also started the work of bringing the entire law of church and state onto a firmer foundation in the words of the Constitution."

– Eric Rassbach, deputy general counsel of the Becket Fund for Religious Liberty, a legal advocacy group, in a statement Monday about the Supreme Court's decision permitting the recital of explicitly religious prayers before the start of meetings of the town council in Greece, N.Y.

For decades, a mostly well-mannered debate has been going on within the Supreme Court over the way to draw a constitutional line between religion and government – the line that Thomas Jefferson in 1802 famously argued should be a "wall of separation." The court, of course, has never quite believed that this had to be a rigid, impenetrable wall. Similarly, though, it has never given up on the notion that there ought to be some separation, and has been more or less committed to making the distance wider rather than narrower.

Podcast: Is the Supreme Court taking down the wall between church and state?

The distance has now grown somewhat narrower, because the court is in the process of switching the constitutional measuring stick for when government action has the effect of "establishing religion" in violation of the First Amendment. The measure to which the court is turning simply allows more religion in government.

That is a project that Justice Anthony M. Kennedy has been pursuing since early in his tenure on the court. He took it a significant step further on Monday, in the court's new decision inTown of Greece v. Galloway.

By a vote of 5 to 4, with the decision actually split in four different directions, the Justices allowed the town council in the Rochester suburb of Greece, N.Y., to open its meetings with prayers. And, most significantly, it allowed those prayers to be explicitly religious in character, invoking the God or gods of a particular faith to bless the official proceedings. It was, in fact, a rather ambitious expansion of the court's last decision on the issue of legislative prayer (its 1983 ruling in Marsh v. Chambers, involving the practice at the opening of sessions of the Nebraska legislature, with a paid chaplain).

Given how the votes of the Justices went, the lead opinion controlling the outcome Monday was the one written by Justice Kennedy.

To more fully appreciate what the Kennedy opinion means, it is useful to go back to a 1989 decision, when the court struck down a display of a Christian nativity scene on the steps of the county courthouse in Pittsburgh. That was a 5-to-4 decision, and Justice Kennedy wrote for the dissenting Justices. The ruling against the crèche was based explicitly upon the theory that the Establishment Clause is violated when the government takes an action that seems to be an endorsement of a particular religious faith. That was the ruling in the case of Allegheny County v. Greater Pittsburgh ACLU.

In dissent at that time, Kennedy argued that the endorsement test was not a proper way to judge relations between church and state, because it would rule out too many examples throughout the nation's history of the recognition of religion as a part of American life and tradition.

Kennedy would develop an alternative mode of First Amendment analysis, the "coercion" test. Most memorably, he used that test in the 1992 decision in Lee v. Weisman, striking down the use of a religious invocation at a public school graduation ceremony. It was a form of coercion for students, the court ruled there, because they may not share the religious views expressed and yet the ceremony was so important in their young lives that they had no choice but to attend.

But the coercion test did not displace the endorsement test, and the court continued to apply that to maintain a goodly distance between religion and government. In fact, when a federal appeals court ruled on the town of Greece's practice of opening local legislative meetings with prayers, it nullified that practice because it gave the distinct impression that this was a mode of endorsement of the Christian faith, which was dominant in that community.

Between the lines of Justice Kennedy's lead opinion overturning that result, and upholding the prayer practice in the town of Greece, there is a thinly disguised critique of the endorsement test and a direct application of the coercion test. Prayer at such sessions, Kennedy wrote, is allowed as long as it is not a form of explicitly advancing the views of one faith or disparaging the views of other faiths.

Here is the way he summed up the result: "Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation."

The decision, of course, left in place the Lee v. Weisman decision as it was meant to protect impressionable young people from having to listen to a prayer that might not represent their own views. And that raises the immediate question whether the new decision would come out the same in the future, if the prayers were being conducted at a government-sponsored youth meeting. Was the decision a vote to tolerate prayers only when "mature adults" are in attendance? The Kennedy opinion, in fact, referred three times to the "adult" nature of the audience sitting in on town of Greece meetings.

The court will soon have a chance to examine whether the new ruling does, indeed, apply only to adult audiences in a government setting that is given a religious cast. It has been holding back, awaiting the Monday decision, a case testing whether it is unconstitutional to hold a public school graduation ceremony in a church, adorned with explicit religious displays and banners. Action on that case could come soon.

Lyle Denniston is the National Constitution Center's adviser on constitutional literacy. He has reported on the Supreme Court for 56 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.