Two New Cases This Week

Earlier this week, the Supreme Court agreed to hear two cases involving questions of criminal law. In Hall v. Florida, the Court will evaluate Florida’s standards for determining whether capital defendants are mentally retarded. (Note: “mentally retarded” is a legal term.) In Robers v. United States, the question presented involves how much a defendant has to pay in restitution for a fraudulently obtained loan.

The two cases have something else in common; both were filed in forma pauperis, or IFP, which means the petitioners do not have to pay filing fees to the Supreme Court. Although the Court usually grants a few IFP cases each Term, generally, these petitions are not followed as closely by courtwatchers as the “paid” petitions. Note, however, that IFP petitioners are not necessarily pro se. In other words, they are not necessarily representing themselves, although many are. In fact, the petitioners in both Hall and Robers are represented by counsel.

In forma pauperis cases can be found in the lower courts as well. In fact, the Supreme Court granted cert in such a case last spring. In Burnside v. Walters, the district court dismissed an indigent plaintiff’s complaint without giving him an opportunity to amend it, and the Sixth Circuit affirmed in an unpublished (and not so not precedential) decision. After the Court granted cert, the Sixth Circuit issued a published (and precedential) opinion in another case, holding that such amendments should be allowed. Because the Sixth Circuit’s new precedent eliminated the circuit split that likely led the Court to take the case in the first place, the Court vacated the Sixth Circuit’s decision in Burnside and remanded the case for further proceedings. SCOTUSblog provided a useful summary of Burnside’s saga.

Town of Greece v. Galloway – Guest Post by Sheldon Nahmod


Town of Greece v. Galloway

This post was originally published in Nahmod Law and has been republished with the permission of the author.

Suppose a town, over a period of a decade or so, regularly invited Christian clergymen to lead the opening prayers in town board meetings. Suppose also that these clergymen, more often than not, invoked Jesus and/or the Holy Ghost in their prayers and that, typically, everyone was asked to stand, bow his/her head or join in the prayer, which some did. At the same time, the town occasionally, albeit infrequently, invited a few others, including non-Christian clergy, to lead the opening prayer. Did this pattern violate the Establishment Clause?

The Second Circuit, in Galloway v. Town of Greece, 681 F.3d 20 (2d Cir. 2012), held that it did. It explained (emphasis added):

“We emphasize what we do not hold. We do not hold that the town may not open its public meetings with a prayer or invocation. Such legislative prayers, as Marsh holds and as we have repeatedly noted, do not violate the Establishment Clause. Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.” A requirement that town officials censor the invocations offered — beyond the limited requirement, recognized in Marsh, that prayer-givers be advised that they may not proselytize for, or disparage, particular religions — is not only not required by the Constitution, but risks establishing a “civic religion” of its own. Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution. Nor are we adopting a test that permits prayers in theory but makes it impossible for a town in practice to avoid Establishment Clause problems. To the contrary, it seems to us that a practice such as the one to which the town here apparently aspired — one that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief — is fully compatible with the First Amendment.

What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”

The Supreme Court granted certiorari, Town of Greece v. Galloway, No. 12-696, and will give us its answer to the Establishment Clause question this Term. Oral argument takes place on November 6, 2013.


The Second Circuit used Justice O’Connor‘s endorsement test in holding that the Establishment Clause was violated. See Lynch v. Donnelly, 465 U.S. 668 (1984), involving religious displays. There were also hints of the oft-derided (especially by Justice ) Lemon test with its insistence on a secular effect. See Lemon v. Kurtzman, 403 U.S. 602 (1971), dealing with aid to religious schools.

What was not really mentioned by the Second Circuit is Justice Kennedy‘s coercion test, set out in Lee v. Weisman, 505 U.S. 577 (1992), which involved a middle-school authorized prayer at graduation . If such a test were applied here, the result probably would be that these opening prayers did not violate the Establishment Clause because adults were involved and the situation was not really coercive. So an important question is: which of these tests will the Court use?

The Court could scuttle the endorsement test in the course of reversing the Second Circuit and apply the less restrictive, more deferential coercion test. Or it could retain the endorsement test and rule narrowly that the circumstances did not amount to an endorsement of religion.

In the background, and perhaps the foreground, is Marsh v. Chambers, 463 U.S. 783 (1983), the only case in which the validity of legislative prayer has been considered by the Supreme Court. Here, the Court ruled that the Nebraska legislature’s practice of opening its sessions with a prayer delivered by a state-employed clergyman did not violate the Establishment Clause. The Court used an historical approach to interpreting the Establishment Clause, emphasizing that the Framers themselves, by their practice in Congress, did not view legislative prayers led by government-employed clergy as violations of the Establishment Clause. In addition, and importantly, the Court noted that the Judeo-Christian content of the prayers in Marsh did not establish religion because the prayers did not proselytize, advance any religion or disparage any religion.

I have long thought that Marsh was a questionable decision: the Framers’ practice should not have been determinative of the validity under the Establishment Clause of legislative prayers led by government employed clergy.

But assuming that Marsh was sound and should be followed, is Town of Greece nevertheless distinguishable from Marsh on the ground that the prayers here advanced Christianity?

My prediction is that the Court will reverse the Second Circuit. The more important issue is how the opinion will be written and by whom.

(For general background on the Establishment Clause, see my post, The Religion Clauses: ‘Tis the Season).

Follow me on Twitter @NahmodLaw

Weekly Roundup – October 16, 2013

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

This Term

Oral argument audio with transcripts for all of last week’s cases, including McCutcheon, is available on Oyez

ISCOTUS Director Carolyn Shapiro took part in an intelligent panel discussion on the new Supreme Court Term on Chicago Tonight

Supreme Court to hear challenges to property seizures before trials

This week’s orders list

Court to rule on greenhouse gasses

The federal shutdown is bad enough – but an upcoming case at the Supreme Court might intensify the gridlock

Faculty OT 2013 Preview

We’re putting together our Deep Dive on Town of Greece v. Galloway. Teachers, what do you want to see included? Tweet us your input

The Supreme Court decided to hear several cases about greenhouse gas emissions. Learn more about the central question these cases ask

Feds Demand Supreme Court Thwart Challenge to NSA Phone Spying

Supreme Court to Hear Challenge to E.P.A. Rules on Gas Emissions

Supreme Court Is Skeptical of Case Against Daimler

Learn more about Kansas v. Cheever, argued today at the Court

Petitions to watch at Friday’s conference


How is this Term’s affirmative action case different from last Term’s? Professor Harpalani has the answers about Schuette v. Coalition to Defend Affirmative Action

Argument preview: Race’s role on campus, in society in Schuette v. Coalition to Defend Affirmative Action

Kenneth Jost discusses the “rights-protecting” precedent at risk at Court in Schuette

A ‘Wonderland’ moment for the court in Schuette

The Supreme Court heard Schuette v. Coalition to Defend Affirmative Action on Tuesday.Why are two groups separately arguing in defense of affirmative action

In U.S. top court race case, John Roberts is chief phrasemaker

PBS NewsHour discussed whether the Michigan amendment prohibiting affirmative action violates equal protection

About the Court

It may be the Kennedy Court for now, but one prediction says the Supreme Court will soon belong to Kagan

Justice Breyer will write on Marcel Proust in the New York Review’s 50th anniversary issue

Justice Kennedy provides an inside look at the Justices’ decision process – and his feelings on often being the deciding vote

Justices Ginsburg and Scalia both complain about the Court’s judicial activism – but some researchers argue otherwise

Inside the Case: Schuette v. Coalition to Defend Affirmative Action


Schuette v. Coalition to Defend Affirmative Action

The Supreme Court will decide on another affirmative action case this Term. Schuette v. Coalition to Defend Affirmative Action, though, is different from the previous Term’s case in its central premise. Learn the background of the case from Professor Vinay Harpalani of Chicago-Kent College of Law.

Guest Post: Constitutional Interpretation in the 21st Century, by Christopher Schmidt


United States v. Windsor

Tomorrow, Thursday, October 10, Chicago-Kent will host a panel discussion on the same-sex marriage cases the Supreme Court decided last June. This event marks the law school’s belated celebration of Constitution Day (Sept. 17). The symposium is funded largely through a grant from the Jack Miller Center’s Constitution Day Initiative. Panelists include Ilya Somin of George Mason University Law School and Chicago-Kent’s Katharine Baker and Carolyn Shapiro. Professor Steven Heyman will moderate.This post originally appeared in the Chicago-Kent Faculty Blog and is republished with permission.

The Chicago-Kent Constitution Day symposium theme—“When Did It Become Unconstitutional for States to Ban Same Sex Marriage?: Constitutional Interpretation in the 21st Century”—comes from a fascinating exchange during oral arguments between Justice Scalia and attorney Theodore Olson in the same-sex marriage cases last March. Olson was arguing on behalf of a group of plaintiffs from California who were challenging Proposition 8, the ballot initiative by which a slim majority of Californians voted to add a same-sex-marriage prohibition to their state constitution. Olson was urging the Court to issue a broad ruling declaring a constitutional right for same-sex couples to marry, but Justice Scalia was not buying his argument. “When did it become unconstitutional to exclude homosexual couples from marriage?” the Justice asked. “1791 [when the Bill of Rights was adopted]? 1868, when the Fourteenth Amendment was adopted?”

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SCIPR Summary

Last week, ISCOTUS was a sponsor of Chicago-Kent College of Law’s Supreme Court Intellectual Property Review (SCIPR), which highlighted intellectual property cases before the Supreme Court last Term and discussed implications for the coming Term. ISCOTUSnow presents a summary from each session of the conference, with help from Daniel Saunders of the Chicago-Kent faculty blog.

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