We should approach this with much trepidation.  It is quite the treacherous path.  It has been coming for a long, long time.

While our Georgia appellate courts have been busily working on the usual array of tax, condemnation and immunity issues, the rumble on the distant horizon is not coming from Atlanta.  It is coming from Washington, D.C.  It is coming from Everytown, U.S.A.

The Actual Controversy

Actually, it is coming from the Town of Greece, New York, population 100,000; which, were its Northern border not Lake Ontario, would be connected to Canada.  With an elected 5-person Board governing things, the monthly Town Board Meetings mirror most of our very own Georgia town and city council meetings – opening the monthly sessions with the Pledge of Allegiance, followed by prayer delivered by a Christian clergy member (usually, at the invitation of an elected official or officials).  Sounds a good deal like Georgia to me.  The Town consistently listed the prayers in the official minutes.

The Town never adopted a formal policy regarding the process for inviting prayer-givers, the permissible content of prayers, or any other aspect of its prayer practice for that matter.  Roughly two-thirds of the prayers over an 8-9 year period of time contained references to “Jesus Christ,” “Jesus,” Your Son,” or the “Holy Spirit.”  The list of Christian references goes on as you might expect. Two citizens sued to stop the accurately alleged overtly Christian references.

The Crossroads

The law governing the issue is and has been anything but clear.  Let’s take a look at a bit at some not-too-distant history:

The United States Supreme Court held in Marsh v. Chambers (1983) that the utilization of a chaplain to start the Nebraska State Legislature did not offend the Establishment Clause of the First Amendment to the Constitution.  The Establishment Clause says, “Congress shall make no law respecting the establishment of religion.”  By way of background, when the 14th Amendment was passed in 1868, the Clause then became applicable to state and local governments, and not just Congress.

The Supremes held this was okay in large part because we have been doing so since the first Continental Congress. The Court held that the lengthy history of the practice of legislative prayer had “become part of the fabric of our society.”  Though far more detailed and complicated than just that, the ruling more than implied that the Court should be concerned only with the content of the prayers, to ensure the practice does not attempt to persuade people to join a religion, or to disparage others.

Then along came the Christmas Crèche (nativity scene) case, County of Allegheny v. ACLU (1989).  There, the Supremes seemingly backpedaled a bit, declaring that the display of the Christmas Crèche on the main staircase of the Allegheny County Courthouse was a no-no.  At the same time, however, the Court did permit a different display outside the very same building featuring both a Hanukah Menorah and a Christmas tree.  This because they were both “part of the same winter-holiday season” and is set forth in an “overall holiday setting”.

The tangible tension between the Marsh and County of Allegheny holdings meant that at some point things were going to come to a head.  And, well, here we are.

And, Well, Here We Are

The transcript of the November 6, 2013 argument at the Supreme Court in Town of Greece v. Galloway, can be found at the Supreme Court of the United States (SCOTUS) Blog: http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-696_6j37.pdf. It is probably easier to simply Google “Town of Greece transcript,” where, at press time, the transcript is first on the list.  This is where you want to go, and, get going, it does in a hurry.  

The Supreme Court session opened, like every other, with the usual “God save the United State and this honorable Court.”  Then, the attorneys sworn into the Supreme Court stand and pledged to do so – “So help me God.”

The lawyer for the Plaintiffs went first, only getting two sentences into his argument when Justice Helena Kagan jumped in with a hypothetical concerning the start of the day’s proceedings.  She asked whether it would be constitutionally permissible for the Chief Justice to call a minister to the front of the courtroom where the minister asks the lawyers, the parties, even the spectators to rise, bow their heads, acknowledge Christ as the savior, drawing strength from the resurrection – the prayer ending with all the justices making the sign of the cross.  The biting, but very direct question set the tone for the entire oral argument, the Justices and lawyers struggling mightily to find the right questions, the right answers, the right parameters; the Justices themselves being asked to answer some of the most difficult questions they may ever face. 

Much of the argument surrounded the very nature of one’s appearing before the Town Hall as a citizen.  Asked in the most poignant of ways, Justice Elena Kagen summed up the dilemma:

“Here a citizen is going to a local community board, supposed to be the most responsive institution of government that exists, and is immediately being forced to identify whether she believes in the things that most of the people in the room believe in – whether she belongs to the same religious team as most of the people in the room.”

Justice Kagen’s (and other Justices’) worry being the possibility of religious coercion taking place.  This is different than the Nebraska Legislature case, the reasoning goes, because there is little to no worry about coercion due to the nature of the proceedings.

Predicting the outcome here is beyond my pay-grade as a columnist.  That’s easy, because as a columnist, I have no pay-grade.  What I can say is that we are at a crossroads, and the members of the Court are both very sensitive to our heritage and history, while also being fiercely devoted to making sure the First Amendment means what it says—whatever that is.

We will see….

(Phil Friduss is a local government attorney in Woodstock, practicing in the law firm of Landrum, Friduss & Ash.  He lives there with his wife Sabrina, and boys Jakob and Wesley.)

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On Monday, our United States Supreme Court promised plenty of work for our brothers and sisters on the nation’s border states practicing governmental liability law.  In Arizona v. United States, 567 U.S. ___ (2012), among other rulings, the 5-3 (9-0 on Section 2(B)) Court upheld Arizona’s controversial Show Me Your Papers provision, which requires local law enforcement to check the immigration status of people they stop for another reason.

Rejecting the United States’ position that federal law pre-empts the Arizona statute in this effect, the Majority broadly reasoned that this particular law complimented, rather than stood as an encroachment, into the federal immigration power.  The Court also reasoned that as a facial challenge to a pre-effect law, it had before it neither a factual record, nor the “benefit of a definitive interpretation from the state courts” upon which to address any Fourth Amendment or other preemption concerns.

The law requires state officers to make a “reasonable attemptto determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.”  Pretermitting the obvious – that every stop will take longer once reasonable suspicion kicks in, the Court also chose not to deal with 2(B)’s vagueness, nor its obvious invitation to practice racial profiling.  This comes as no surprise, given the Court’s getting the Solicitor General at Oral Argument to concede that, at least at this stage, the case does not involve a racial profiling element.

The Court has turned loose to the lawyers and the courts the responsibility to create this definitive interpretation of how this law impacts the Fourth Amendment and other rights of United States citizens.  Arizona will see plenty of litigation over the certain-to-be future interplay at the in section of 2(B) and the Fourth Amendment.

Somewhat lost in the shuffle, is the Obama Administration’s having cancelled some agreements allowing Arizona Police Departments to enforce federal immigration laws. The Administration has set up a hot-line and email address for the public to report civil rights concerns.  It is unclear what impact this will have on the overall landscape.  It seems unlikely the Feds would pull such agreements nation-wide.


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