Tired of playing with all of your new toys already?! Well, we have just the thing–our third and final annotation of SCOTUS’s oral argument transcript on whether a town council can hold a prayer at the beginning of its meetings without violating the Establishment Clause of the First Amendment. When we left off, the conservative Justices were challenging one of the attorneys, Mr. Laycock, to identify which religious groups would be included/excluded if SCOTUS adopted a rule that legislative prayers had to be “generally acceptable to most believers.” Let’s get back to the transcript, kids (in case you were naughty and missed them, here is Part I and Part II).
JUSTICE SCALIA: You want to pick the groups we’re going to exclude?
MR. LAYCOCK: I think you picked them, Your Honor.
JUSTICE SCALIA: The Baha’i, who else? These groups are too small to —
CHIEF JUSTICE ROBERTS: We’ve already excluded the atheists, right?
JUSTICE SCALIA: Yeah, the atheists are out already.
MR. LAYCOCK: We’ve excluded the atheists. I don’t think the Baha’i are excluded, but I’m not certain.
JUSTICE SCALIA: Okay. So who else? I mean, you say just the vast majority is all that we have to cater to.
MR. LAYCOCK: Well, I think the atheists are inevitably excluded. We can’t help -
JUSTICE SCALIA: Okay. Good. Got that. Number 1, atheists. Who else?
Scalia sure seems excited to exclude minority religious groups from recognition in religious prayer. I like to poke fun at Justice Scalia, but in fairness, what he’s doing here is important. He’s trying to get material for the Court’s opinion. He will likely vote against Mr. Laycock and hold that the town of Greece’s practice of prayer in this case is constitutional. He wants to include language in the opinion that goes something like this: “During oral argument, even the attorney who asked us to require more inclusive prayers struggled to identify which groups were deserving of protection. Why should one small sect be included over another small sect? Counsel was unable to identify a good reason during oral argument, and that makes sense. It is decidedly not this Court’s role to draw such narrow distinctions between religious groups.”
MR. LAYCOCK: True polytheists who don’t understand their gods as manifestations of the one god are probably excluded. I’m not sure many others are. And you have all these lawyerly hypotheticals, but the fact is we’ve done this kind of prayer in this country for 200 years. There’s a long tradition of civic prayer and the clergy know how to do it. When in Greece, no one has told them that’s what we want you to do. And I would say the one time the country in a major way got involved in government-sponsored, sectarian prayers that people disagreed about was when we imposed Protestant religious exercises on Catholic children in the 19th century. And that produced mob violence, church burnings, and people dead in the streets.
JUSTICE KAGAN: Mr. -
CHIEF JUSTICE ROBERTS: We’ve already separated out, I thought, in our jurisprudence, children and adults.
Time to place bets. How many times will Kagan be interrupted before she is able to ask her question? I’ll set the over-under at five.
MR. LAYCOCK: Well, Lee v. Weisman twice reserves the question of whether adults might be subject to similar pressures.
CHIEF JUSTICE ROBERTS: Well, you do accept the fact that children may be subject to subtle coercion in a way that adults are not, right?
MR. LAYCOCK: In some ways that adults are not. But there’s no doubt that before you stand up to ask for relief from a governing body, you don’t want to offend that body. Adults are subject to coercion here. And no competent attorney would tell his client, “it doesn’t matter whether you visibly dissent from the prayer or not.” You try to have your client make a good impression.
JUSTICE KENNEDY: Well, I just want to make sure what your position is that town councils like Greece can have prayers if they are non-provocative, modest, decent, quiet, non-proselytizing. That’s your position?
MR. LAYCOCK: I wouldn’t use all those adjectives, but yes. And we don’t think that’s difficult to do.
JUSTICE KAGAN: Mr. -
The second Kagan interruption:
JUSTICE BREYER: Congress has a set of guidelines which you’ve read and are here in the papers and so forth. Are those satisfactory to you?
MR. LAYCOCK: We’d like to be a little more explicit, but those are vastly better than –
JUSTICE BREYER: If those are satisfactory to you, then I wonder, are they satisfactory to everyone. And you will find all kinds of different beliefs and thoughts in this country, and there will be people who say, but I cannot give such a prayer if I am a priest or a minister or whatever in that particular religion. I must refer to God as I know that God by name. And what do we do with them? That’s what — I mean, we can recommend it, but can we say that the Constitution of the United States requires it?
MR. LAYCOCK: You know, there are such people and I respect that and they should not be giving government prayers. They’re taking on a government function when they agree to give the invocation for the town board.
JUSTICE KAGAN: Mr. Laycock -
JUSTICE SCALIA: Well, that’s really part of the issue, whether they’re undertaking a government function or whether they’re acting as citizens in a legislative body, representative of the people who bring to that their own personal beliefs. I think the average person who participates in a legislative prayer does not think that this is a governmental function. It’s a personal function. And that’s why we separate out the legislative prayer from other kinds of prayers.
MR. LAYCOCK: They’re not praying for their congregation. They are invited by the board, the prayer-giver is selected by the board, the board decides to have the prayer; the board gives this one person and only one person time on the agenda to pray. This is clearly governmental as you held in Santa Fe -
JUSTICE SCALIA: If you had an atheist board, you would not have any prayer.
MR. LAYCOCK: Precisely.
JUSTICE SCALIA: I guarantee you, because it is a personal prayer that the members of the legislature desire to make.
JUSTICE SOTOMAYOR: Counsel, assuming that we don’t -
JUSTICE KAGAN: Mr. Laycock, would you -
CHIEF JUSTICE ROBERTS: Justice Sotomayor.
That’s four. And, how did the Chief Justice possibly decide to let Sotomayor ask her question here? Let Kagan ask her question already!
JUSTICE SOTOMAYOR: You hear the resistance of some members of the Court to sitting as arbiters of what’s sectarian and nonsectarian, and I join some skepticism as to knowing exactly where to join that line. Assuming you accept that, what would be the test that you would proffer, taking out your preferred announcement that this prayer has to be nonsectarian?
MR. LAYCOCK: Well, the test that we have proffered is the test from the McCreary dissent, points on which believers are known to disagree. So you don’t have to be a theologian. Points on which people are commonly known to disagree, and the Fourth Circuit has had no difficulty administering this rule. The cases that come to it are clearly sectarian or clearly nonsectarian.
JUSTICE KENNEDY: It just seems to me that enforcing that standard and the standard I suggested involves the State very heavily in the censorship and the approval or disapproval of prayers.
MR. LAYCOCK: But it’s not censorship when it’s the governmental -
JUSTICE KENNEDY: That may play ultimately in your position if we say that that’s why there shouldn’t be any prayer at all. But then you have the problem mentioned by Justice Scalia that we are misrepresenting who we really are.
Speaking of misrepresentations, that is a pretty significant misrepresentation of the point Scalia was making.
MR. LAYCOCK: If you really believe government can’t draw lines here, then your alternatives are either prohibit the prayer entirely or permit absolutely anything, including the prayer at the end of our brief, where they ask for a show of hands, how many of you believe in prayer? How many of you feel personally in need of prayer? If there are no limits, you can’t draw lines.
JUSTICE SCALIA: That’s not a prayer. That’s not a prayer.
MR. LAYCOCK: Well, it was how -
JUSTICE SCALIA: “How many of you have been saved?” That’s not a prayer.
Why is Scalia so sure he knows what a prayer is better than everyone else? He might be right, but it seems at least debatable.
MR. LAYCOCK: It was how he introduced his prayer, and if you can’t draw lines I don’t know why he can’t say that.
JUSTICE KAGAN: Mr. Laycock, all hypotheticals aside, isn’t the question mostly whether the kind of language that refers repeatedly to Jesus Christ, which is language that is accepted and admired and incredibly important to the majority of the members of many communities, but is not accepted by a minority, whether that language will be allowed in a public town session like this one. That’s really the question, isn’t it?
Hooray! Kagan got her question in! Those who took the under win. She was only interrupted four times before making it through the full question.
MR. LAYCOCK: That’s the issue that actually arises in the case.
JUSTICE KAGAN: That’s the issue that actually arises. I don’t think that this is an easy question. I think it’s hard, because of this. I think it’s hard because the Court lays down these rules and everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways. This goes back to what Justice Breyer suggested. Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way. And every time the Court gets involved in things like this, it seems to make the problem worse rather than better. What do you think?
And what a great question! This is one of the reasons why I love the Supreme Court. Oral arguments are opportunities for a small group of very intelligent and accomplished people to sit down and wrestle with some of the most challenging issues that face a diverse democracy. Kagan is basically saying, “Look, I agree that there’s a problem, and I’d love to fix it, but I’m concerned that anything we try to do to fix it would make it worse. Do you think that’s a reasonable concern?”
MR. LAYCOCK: Well, I don’t think that’s true. There are people who distort your decisions. There are people who misunderstand your decisions honestly and innocently. But keeping government neutral as between religions has not been a controversial proposition in this Court. And I don’t think the Fourth Circuit has made it worse. They’ve got a workable rule and the prayers are no longer exclusively Christian prayers in the Fourth Circuit and they have been able to mostly enforce that and there hasn’t been litigation at the margins because all the prayers were clearly -
JUSTICE BREYER: Suppose you did this. You combined your two approaches. The town must make a good faith effort to appeal to other religions who are in that area. And then you have these words from the House: “The chaplain should keep in mind that the House of Representatives,” or you would say whatever relative group, “is comprised of members of many different faith traditions,” period; end of matter. Is that sufficient, those two things?
MR. LAYCOCK: That would help immensely. We think some of the clergy need more detailed explanation of what that means, but yes, that would help immensely.
JUSTICE KENNEDY: Should we write that in a concurring opinion?
I think a person has to be almost unbelievably nerdy (or simply in the room?) to find that line laugh-worthy. I’m not sure that I have quite made it to that level yet because I don’t really get the joke. I’m guessing people found it funny because concurring opinions have no real binding impact, so it sounded like Kennedy was saying that the idea sounded good, but would never work in practice. But, honestly, your guess is as good as mine as to why, exactly, people found that one funny. By the way, Kennedy currently has six laugh lines during oral arguments this term. Guess who has the most.
JUSTICE KENNEDY: I mean, I’m serious about this. This involves government very heavily in religion.
MR. LAYCOCK: Well, government became very heavily involved in religion when we decided there could be prayers to open legislative sessions. Marsh is the source of government involvement in religion. And now the question is how to manage the problems that arise from that.
JUSTICE ALITO: Well, Marsh is not the source of government involvement in religion in this respect. The First Congress is the source.
MR. LAYCOCK: Fair enough. The tradition to which Marsh points.
JUSTICE ALITO: The First Congress that also adopted the First Amendment.
MR. LAYCOCK: That’s correct, and that had prayers that did not address predestination or having to accept Jesus as your savior or any point on which listeners disagree.
JUSTICE ALITO: Many of them were very explicitly Christian, were they not?
MR. LAYCOCK: They were very explicitly Christian, but that was not a point of disagreement at the time. They stayed away from any issue that Protestants disagreed on.
JUSTICE KENNEDY: In a way it sounds quite elitist to say, well, now, we can do this in Washington and Sacramento and Austin, Texas, but you people up there in Greece can’t do that.
MR. LAYCOCK: Well, it’s not that the people in Greece can’t do it. It’s just that this board is functioning in a fundamentally different way from what Congress or the State legislature functions. And also -
JUSTICE ALITO: My understanding is that the first chaplain of the Senate was the Episcopal bishop of New York; isn’t that correct? And he took his prayers from the Book of Common Prayer. That was acceptable to Baptists at the time, Quakers?
MR. LAYCOCK: Well, it wouldn’t have been their choice. But did he talk about the choice between bishops and presbyters and congregations as a way of governing the church? They have not offered a single example of a prayer in the founding era that addressed points on which Protestants were known to disagree. And I don’t think there is one. The founding generation kept government out of religious disagreements. And what has changed is not the principle. What has changed is that we have a wider range of religious disagreements today. If there are no further questions, we ask you to affirm.
I have a feeling that Mr. Laycock is going to lose this case. SCOTUS seems inclined to allow Greece to start its town meetings with whatever prayer the council wants. But that decision seems to be based largely on the, “We’ve always done it this way” argument. I think it’s valuable to point out that the First Congress had legislative prayer, but I’m not sure it should be the end of the discussion. It is entirely possible that the First Congress was violating the Constitution when it held legislative prayer.
The Establishment Clause basically says that government entities cannot throw their weight behind religions. It sure seems like holding a prayer before town council meetings is a step toward establishing a government-backed religion. I think I’m in the minority on this one, but I would like to see the Court ban legislative prayer entirely. For better or for worse, that may not happen anytime soon.
Thanks for spending this Christmas whatever holiday and/or non-holiday you celebrate and/or do not celebrate season with us! Happy New Year (that is, if you recognize January 1 as the start of your new year)!
 It is Justice Scalia with 22, followed closely by Justice Breyer with 20. Thanks for keeping a running count Jay Wexler, @SCOTUSHUMOR.