Written by Don Byrd
The Supreme Court’s decision earlier this week to take up the issue of legislative prayer for the first time in 30 years leaves many questions about the future of the government prayer balance. Veteran reporter Lyle Deniston considers what this decision likely means, in a new essay for Constitution Daily. The Appeals Court used the endorsement test – the view that government action is improper if it gives the appearance of an affiliation or endorsement with a religious perspective – to invalidate the prayer practice of Town of Greece. Is that the problem?
[B]y granting review of that specific decision, the justices may well have been telegraphing a desire to second-guess the endorsement theory when prayers are recited at the outset of a public meeting of a government agency, with adults making up most of the audience.
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It is worth noting that, when the Supreme Court itself last used the endorsement test to strike down prayer in a public arena (the football game case), it did so with six justices in the majority, but now only three of those remain: Justices Kennedy, Stephen Breyer, and Ruth Bader Ginsburg.That trio might still form the nucleus of a new majority in favor of continued application of the endorsement test to monitor the line between favored and disfavored religious expression, but again it may not. And the replacement, in the meantime, of Justice O’Connor by Justice Samuel A. Alito Jr. has definitely brought a strong new voice for acceptance of religious expression in the public sphere.
Read the whole thing.
It is far too early to speculate on the Court’s specific concerns. But, moving substantially away from the endorsement test in favor of a test that requires coercion to implicate the Establishment Clause would be a significant weakening of church-state protections.
