At SCOTUSBlog, Lyle Denniston on the oral argument in Town of Greece v. Galloway: Marsh’s Demise? Or Its Renewal? From the introduction:
If Justice Anthony M. Kennedy was serious that history might not be enough to justify prayers to open government meetings, the Supreme Court will have to set off on a deeply challenging search for a different way to judge such religious utterances. But if Justice Elena Kagan is right that, whatever the Court might do, it could make the cultural problem worse, then history may in the end turn out to be the only test to apply.
Marsh v. Chambers, the brief 1983 opinion by Chief Justice Burger, upheld Nebraska’s practice of opening legislative sessions with a prayer — mainly on the basis that the Congress that approved the Bill of Rights opened its own session with a prayer:
On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights. Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.
That should get a mixed review on originalist grounds. On one hand, the practice is reasonably good evidence of original meaning, as Burger says. Whatever people at the time thought the clause meant, apparently they did not think it barred legislative prayer. But on the other, the opinion did not tie the practice to a meaning of the clause. One might hope to have a textual explanation of why the First Congress did not think there was an establishment clause violation. Marsh did not supply one, and Marsh remains not fully persuasive until the Court comes up with one. Perhaps Town of Greece – which challenges a similar practice of opening town council meetings with a prayer — will do so. (But Lyle Denniston’s account doesn’t not make it seem especially likely).
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.