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2 More Important Cases: Legislative Prayer, Abortion Protests

By William Peacock, Esq. on September 30, 2013 | Last updated on March 21, 2019

In our continuing series of previews of the biggest cases coming up in the Supreme Court's 2013 Term, today we'll quickly address a pair of disputes that contain all of the hallmarks of landmark cases: controversy, ideological divides, and quite possibly, a battle with stare decisis.

So while we're waiting for the nine justices and their legion of clerks to sort through the approximately 2,000 certiorari petitions that backlogged over the summer, we'll have to make due with these cases, which have already been granted cert, and which could result in some of the term's earliest decisions.

Abortion Protests (McCullen v. Coakley)

This case could be the big stare-down with stare decisis.

In 2000, the Court upheld a Colorado law that effectively banned protests within a short eight-foot "buffer zone" of reproductive health facilities. In this case, the distance is 35 feet. As far as differences in the cases go, they seem minimal. The real difference lies in the Court's composition. Chief Justice William Rehnquist, as well as Justices O'Connor, Souter, and Stevens are no longer on the Court.

In the Colorado case, Justices Scalia and Thomas filed one dissent, with Kennedy penning his own. All agreed that the law, which covered abortion clinics only, was a content-based restriction on free speech.

Would Chief Justice Roberts and Justice Alito agree? And will the shift in court makeup overcome stare decisis?

Interestingly enough, the Court previously declined to hear this case in 2005, but granted cert. after it made its third trip to the First Circuit earlier this year.

Legislative Prayer (Galloway v. Town of Greece)

Since 1999, the town of Greece, New York, has opened its board meetings with a prayer. From 1999 to 2007, every prayer-giver was Christian. In 2008, after Galloway and Stephens, the plaintiffs in this lawsuit, complained, four out of 12 prayers were delivered by non-Christians.

The town has no formal policy about this. Anyone can request to give an invocation and no prayers are censored or reviewed before delivery. It simply happened to be that every person to give an invocation happened to be a Christian.

The Second Circuit reversed the district court's grant of summary judgment, stating:

"The town's desire to mark the solemnity of its proceedings with a prayer is understandable; Americans have done just that for more than two hundred years. But when one creed dominates others -- regardless of a town's intentions -- constitutional concerns come to the fore."

The fuzziness of Supreme Court precedent indicates that religious practices that give, to the reasonable observer, a message of endorsement of a particular religion, are a violation of the Establishment Clause. Justice O'Connor, the creator and proponent of the "Endorsement Test," is obviously no longer on the Court.

The impact of this case will be felt outside of the town of Greece, as similar cases have cropped up in a number of circuits. These include a challenge brought by atheists to an actively inclusive prayer policy in Florida, and a Fourth Circuit case that was denied review by the Supreme Court last year.

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