Why is the Obama administration bowing to religion?

[rug]

Oddly, it has chosen to defend an unconstitutional prayer policy before the Supreme Court.

By Erwin Chemerinsky
November 5, 2013

In a move sure to please religious conservatives, President Obama's Justice Department filed a brief in the Supreme Court in favor of allowing overtly Christian prayers before city council meetings. It's an inexplicable move, and it's one more befitting a Republican administration than one headed by a Democrat and a constitutional scholar.

The case is Town of Greece vs. Galloway, and it's set to be argued in the Supreme Court on Wednesday. Greece is a suburb of Rochester, N.Y. Until 1999, its Town Board opened meetings with a moment of silence — a practice that excludes no one. But then Town Supervisor John Auberger initiated a policy change, and the town began inviting clergy to open meetings with a prayer.

These prayers were decidedly and explicitly Christian. From 1999 to 2007, the town invited exclusively Christian ministers, most of whom included explicitly Christian content. Some elaborated on Christian theology, including such discussions as "the saving sacrifice of Jesus Christ on the cross" and "the plan of redemption that is fulfilled in Jesus Christ."

These prayers were delivered to an audience of local citizens, including children and adults, who attend meetings at the Town Board's invitation or direction. Children's athletic teams are invited to be publicly honored, police officers and their families attend to participate in oath-of-office ceremonies, people come to speak about local issues of great personal importance, and would-be business owners come to request zoning permits.

http://www.latimes.com/opinion/commentary/la-oe-chemerinsky-prayer-in-govt-meetings-scotus-20131105,0,2149560.story#axzz2jmgrY4l2

Oral arguments are tomorrow. The audio will be available Friday. http://www.supremecourt.gov/oral_arguments/argument_audio.aspx

[djean111]

1. Because there are more religious voters and contributors, would be my guess.

All politicians must need to truckle, it seems.
And the Constitution seems very bendy as late.

[Laelth]

2. Chimerinsky is not to be ignored.

When I was in law school, I read Chimerinsky's book on Constitutional Law as did many other attorneys of my generation. It is rare for him to chime in on an issue like this. When he speaks, people listen, and I agree with him. It makes no sense for this administration to advance a position that violates separation of church and state. This is a mistake on the part of the administration, and I am saddened by it.

-Laelth

[cbayer]

3. Seems it would have been better

had they stayed silent on this one.

I also wonder why they felt the need to weigh in at all.

[longship]

4. Or, weigh in on the side of upholding the establishment clause.

It's actually really simple.

[cbayer]

5. Agree that that would have been the best position, but

if they felt that was untenable, silence would have been better than this.

[longship]

6. Agreed.

Good to see ya!

[goldent]

7. Isn't it the Supreme Court that will decide if it is unconstitutional?

[rug]

8. Yup. The arguments are today.

[goldent]

9. I agree with you that it sounds unconstitutional

Assuming the article was written accurately and included all important facts.

We'll see what the justices think.

[struggle4progress]

10. Here are the oral arguments (pdf):

http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-696_6j37.pdf

[struggle4progress]

11. Some excerpts from the oral arguments

KAGAN (questioning HUNGAR for Greece circa page 3/4) ... Suppose that as we began this session of the Court, the Chief Justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators. And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, we acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side. The members of the Court who had stood responded amen, made the sign of the cross, and the Chief Justice then called your case. Would that be permissible?
HUNGAR I don't think so ...

SOTOMAYOR (questioning GERSHENGORN for US supporting Greece, circa page 21) ... So let's talk about the context instead of prayer. If the Chief Justice got up at the beginning of this session and said "All rise for a prayer," would you sit down? ...
GERSHENGORN ... I don't think many would sit ...
SOTOMAYOR: (circa page 22) So why do you think that someone who is sitting in a small room where hearings of this nature are being held, when the guy who's about, the chairman of this legislative body, is about to rule on an application you're bringing to him or her, why do you think any of those people wouldn't feel coerced to stand? ...

HUNGAR (for Greece, circa page 7) ... Respondents try to argue that this is somehow what they call coercive because there are public hearings that are held. But the public hearings are held at least 30 minutes after the prayer and anyone coming for the purpose of the public hearing can easily show up after the prayer if they don't want to be there ...
GINSBURG (questioning HUNGAR circa page 13) ... It's not simply a legislature. It has a number of administrative functions. Sometimes it convenes as a town meeting. Sometimes it entertains zoning applications ...
GERSHENGORN (for US supporting Greece, circa page 22) ... And we do think it is important on this record that those are separated in time ... So that the meeting starts at 6:00, which is in the prayer -- when the prayer is, but the board meetings to adjudicate those types of issues are at 6:30 or 6:32 ...
KAGAN (questioning GERSHENGORN, circa page 24) ... Here's what our -- our country promises, our Constitution promises. It's that, however we worship, we're all equal and full citizens. And I think we can all agree on that. And that means that when we approach the government, when we petition the government, we do so not as a Christian, not as a Jew, not as a Muslim, not as a nonbeliever, only as an American. And what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive institution of government that exists, and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious idiom as most of the people in the room do ...
LAYCOCK (for Galloway, circa page 29) ... Petitioner's answer to Justice Kagan's opening question is entirely formalistic. There is no separation in time between the public hearing and the invocation. People appear before this town board to ask for personal and specific things. Our clients put shows on the cable channel. They were concerned the cable channel was about to be abolished or made much less usable. People appear to ask for a group home, parents of a Down syndrome child. There are many personal petitions presented ...
LAYCOCK (circa page 30/31) ... When a citizen appears and says, solve the traffic problem at my corner, solve this nuisance family that commits a lot of crimes in my block, that's not asking for legislation or policymaking. That's asking for administrative action. This board has legislative, administrative, and executive functions ...
LAYCOCK (circa page 37) ... What's coercive about it is it is impossible not to participate without attracting attention to yourself, and moments later you stand up to ask for a group home for your Down syndrome child or for continued use of the public access channel or whatever your petition is, having just, so far as you can tell, irritated the people that you were trying to persuade ...


ALITO (questioning LAYCOCK, circa page 31)
... Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus. Give me an example of a prayer. Wiccans, Baha'i.
ROBERTS And atheists ...
LAYCOCK (circa page 32) ... We -- we take Marsh to -- to imply that atheists cannot get full relief in this context ...
LAYCOCK (circa page 33) ... But the true polytheists I think are also excluded ...
LAYCOCK (circa page 39/40) ... We think the town needs a policy. The policy should give guidelines to chaplains that say: Stay away from points in which believers are known to disagree. And we think the town should do what it can to ameliorate coercion. It should tell the clergy: Don't ask people to physically participate. That's the most important thing ... Some States put their prayer before the call to order. The prayer could even be five minutes before the beginning of the meeting. The coercion can't be entirely eliminated, but the gratuitous coercion, the things that are done that don't have to be done in order to have a prayer could be eliminated. And we think those two pieces are the components of a remedy ...
LAYCOCK (circa page 41) ... We haven't said they can't invoke the deity or have a prayer, and they can certainly pray any way they want silently or just before the meeting. We've said they cannot impose sectarian prayer on the citizenry ...