The 2013–2014 term of the U.S. Supreme Court could be its most important in years with respect to church-state issues. We already know that the court will hear a case involving the constitutionality of invocations in local government settings such as city hall or county board meetings: Town of Greece v. Galloway (No. 12-696). By itself, this case would make the upcoming term significant, but the Supreme Court may also have a chance to resolve the contentious issue of whether the federal regulation that requires employers to provide contraceptive services under the Affordable Care Act (a.k.a. Obamacare) violates the Religious Freedom Restoration Act (RFRA). We will not know for a few more months yet whether the Supreme Court will intervene, because there are literally dozens of lawsuits on this issue winding their way through the courts. Also, it is possible that the Department of Health and Human Services (HHS) could make the entire cascade of lawsuits moot by rescinding the regulation in question. I think that is extremely unlikely; it is much more likely that the Supreme Court will resolve this issue, with the principal uncertainty being the timing of the court’s involvement.
Back to the prayer case: interest in this one is high in part because this will be the first time in thirty years that the court has considered the constitutionality of prayer in the setting of a government meeting. The court last considered this issue in Marsh v. Chambers, 463 U.S. 783 (1983), in which it ruled that prayers by chaplains in legislatures did not violate the establishment clause. (I remember that decision well because at the time I was representing Madalyn Murray O’Hair in a case challenging chaplains in Congress; Marsh made my case moot.) Marsh is notable because it did not apply the court’s accepted test for constitutionality in establishment clause cases, that is, the tripartite test of Lemon v. Kurtzman. (Does the government action lack a secular purpose? Does it advance religion? Does it entangle government with religion?) Instead, it found legislative prayer to be a unique historical exception to the rule that government endorsement of religion is impermissible. The majority opinion in Marsh did place some limits on legislative prayer, however, indicating that legislative prayer might be unconstitutional if the “prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other faith or belief."