LAW AND RELIGION FORUM

Another Establishment Clause case, another 5-4 decision. Another fact-specific ruling in which Justice Kennedy provided the deciding vote. Another separate opinion by Justice Thomas arguing that it makes no sense to apply the Establishment Clause against the States in the first place. More high-blown rhetoric about What American Means and why the Court’s decision honors our traditions or betrays them. Just another day at the office for the Justices.

It’s possible to see yesterday’s decision in Town of Greece, the legislative prayer case, as just one more, muddy Establishment Clause case that doesn’t settle much of anything. Justice Kennedy’s opinion for the Court doesn’t announce a hard-and-fast rule. Indeed, he wrote, “it is not necessary to define the precise boundary of the Establishment Clause where history shows that [a] specific practice is permitted.” Legislative prayer has a very long history in America, dating back at least to the Framing. The Town of Greece’s practice…

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