It’s that time of year to sit down to make fun of the guy at the office holiday party who gets too drunk and starts hitting on coworkers prop up the economy by spending excessive money on gifts stunt our children’s logical development by telling them a fat man squeezes down every chimney in the world in one night to deliver presents contemplate the role of religion in our society! To that end, here is a religiously-themed SCOTUS oral argument transcript figuratively gift wrapped just for you.
Can town councils start their meetings with Christian prayers? That is the question before the U.S. Supreme Court in Town of Greece v. Galloway. The small town of Greece, NY begins town council meetings with a prayer, which is almost always Christian in nature. Two citizens of Greece, an atheist and a Jew, attended a meeting to request that changes be made to a local television channel. Offended by the prayer at the start of the meeting, these citizens sued the town arguing that the prayer violates the Establishment Clause of the Constitution, which codified the separation of church and state.
Below is the actual transcript (lightly edited for clarity) of the citizens’ attorney’s oral argument (with my thoughts intermixed in italics) at the Supreme Court last month. The full official transcript can be found here.
Mr. Laycock,the citizens’ attorney, begins by trying to explain to the Justices that the town council meetings in Greece begin with a prayer as part of the meeting, so people who want to attend are essentially forced to listen to the prayer. Mr. Laycock believes that any prayer should be held well before the meeting itself, so people who don’t want to hear it can show up after the prayer without missing the meeting. Mr. Laycock would also like the prayer to “avoid points on which believers are known to disagree.” Now, how exactly someone is supposed to pray in a way that appeals to everyone is beyond me, but as we will see, Mr. Laycock sure seems to think it’s possible, so let’s hear him out.
As always, enjoy. 
MR. LAYCOCK: Mr. Chief Justice, and may it please the Court. 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 — There are many personal petitions presented in the immediate wake of the prayer.
JUSTICE ALITO: But that’s during the public forum part.
MR. LAYCOCK: That’s in the public forum.
JUSTICE ALITO: Which is not the same thing as the hearing.
MR. LAYCOCK: It’s not the same thing as the hearing and that’s the point, Your Honor.
JUSTICE ALITO: There’s another part of the proceeding that is the hearing.
MR. LAYCOCK: Yes.
If you have no idea what Alito is trying to get at, good, neither do I. Hang in there.
JUSTICE ALITO: And that’s when somebody has a specific proposal. They want to — something specifically before the board and they want relief. They want a variance.
MR. LAYCOCK: The hearing is a particular kind of proposal.
JUSTICE ALITO: And that is separated in time.
MR. LAYCOCK: That is somewhat separated in time. The forum is not. And people make quite personal proposals there. They ask for board action. They often get board action.
So, to recap, we’re five Alito questions deep at this point, and we may or may not have established that the hearing and the forum are two different things. Let’s just say that Justice Alito is not in the running for this year’s Clarity of Questions award. Let’s see where he’s going with this…
JUSTICE ALITO: But that is a legislative body at that point. It’s clearly a legislative body, is it not? The only difference is it’s a town rather than Congress or a State legislature where you have more formalized procedures. This is more direct democracy. Or it’s a town meeting.
Ahhhh. Got it? SCOTUS has previously ruled that legislative prayer is generally okay when Congress does it. So, Alito is suggesting that there is no difference between the prayers in this case and the prayers in Congress. It just took Alito six questions to get there…
MR. LAYCOCK: It is direct democracy. 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.
JUSTICE ALITO: Well, if that is your argument, then you are really saying you can never have prayer at a town meeting.
MR. LAYCOCK: That’s not what we’re saying. We’re saying -
JUSTICE ALITO: How could you do it? Because that’s the kind of thing that always comes up at town meetings.
Wait a minute. I see what Alito is doing here. On rare occasions, a single Justice will ask at least ten questions in a row. We call it a DDQ, and it’s such a rare accomplishment that it can be a career defining moment for a Justice. We’re already at eight questions in a row for Alito. YOU CAN DO IT!
MR. LAYCOCK: We’re saying you cannot have sectarian prayer. The town should have a policy in the first place, which it doesn’t. Instruct the chaplains to keep your prayer nonsectarian, do not address points of -
JUSTICE ALITO: All right. Give me an example. 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.
CHIEF JUSTICE ROBERTS: And atheists.
Ohhhhhhhhhh. Alito made it to nine before being cut off by the Chief Justice. That’s like taking a perfect game into the ninth inning only to lose it on a bunt single.
JUSTICE SCALIA: And atheists. Throw in atheists, too.
First of all, the Justices seem to think that there is something humorous about atheists throughout this transcript. I can’t figure out what it is. Second, Roberts clearly beat Scalia to the punch on bringing up atheists, so he should arguably get at least partial credit for that laughter line. Continue reading