Justice Kagan and the ‘Naked Public Square’

Published May 7, 2014 12:45pm ET



This week, the Supreme Court affirmed a New York town council’s tradition of beginning its meetings with a prayer. In Town of Greece v. Galloway, the court held, by a bare majority, that the First Amendment’s Establishment Clause does not prohibit such prayers led by local clergymen, even when the prayers tend to be Christian.

Interestingly, the court’s four dissenters did not oppose such legislative prayers in all cases (as Justices Brennan and Marshall did a generation ago). Instead, they conceded that such prayers can be constitutional, but they further concluded that this town council’s particular practice violate the “norm of religious equality,” because the prayers “were predominantly sectarian in content” and the council’s selection of local prayer leaders “did nothing to recognize religious diversity.”

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