Elon Law Professor Scott Gaylord recently authored an amicus curiae brief and provided public analysis of the pending U.S. Supreme Court establishment clause case Town of Greece, N.Y. v. Galloway.
The issue in the case, according to SCOTUSblog, is, “Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.”
Gaylord addresses this issue in, “Brief amici curiae of Board of Commissioners for Carroll County, Maryland, et al.,” filed with the U.S. Supreme Court on behalf of several county commissions in states across the country. In the brief, Gaylord contends that certain prayer policies are constitutional under the Court’s prior holdings in Marsh v. Chambers and Pleasant Grove City v. Summum, even though particular prayers may contain sectarian references.
An August 21 National Law Journal cover story, titled “Prayer Circle,” features insights from Gaylord on the Supreme Court’s establishment-clause jurisprudence.
“Whatever side one is on, it really is a train wreck on one level in terms of the proliferation of tests in a variety of contexts,” Gaylord says in the National Law Journal article, referring to court decisions involving crosses on public land, nativity scenes, prayer in schools, Ten Commandments monuments and others.
“The Second Circuit [in Greece] talks more about the endorsement test and there is some speculation the court may use it as an opportunity to revisit the endorsement test,” says Gaylord in the National Law Journal article, adding, “That could be a landmark case. Extending Marsh would be important for thousands of local communities and would be a concern for groups who challenge these types of prayer practices, but not as big a ruling as revisiting the endorsement test.”
Gaylord’s amicus curiae brief and public analysis of Town of Greece v. Galloway expands on his research exploring jurisprudence at the intersection of the Constitution’s free speech and establishment clauses, examining the impact of the U.S. Supreme Court’s newly minted government speech doctrine on legislative prayer and other forms of facially religious government speech. Gaylord’s scholarship in this area includes the article, “When the Exception Becomes the Rule: Marsh and Sectarian Legislative Prayer Post-Summum,” published in 2011 in the University of Cincinnati Law Review.
Professor Gaylord is speaking on these matters in weeks ahead at Florida Coastal School of Law, Michigan State University College of Law and Wayne State University Law School.