Dueling Supreme Court Opinions: Prayer at the Polling Place?
[Image courtesy of britannica]
It’s Election Day in several states and localities across the nation, and as the midterms (and the 2016 Presidential election) approach it seems that elections are on everyone’s minds – including the U.S. Supreme Court, where two Justices had a fascinating aside in yesterday’s Town of Greece ruling upholding the use of a legislative prayer. [SCOTUSBlog’s Amy Howe has a “plain English” review here.]
The exchange occurs in a dissenting opinion by Justice Elena Kagan – which prompts a response from Justice Samuel Alito in a concurring majority opinion. As usual, Election Law Blog’s Rick Hasen is on the case (see what I did there?):
Justice Kagan, dissenting in today’s Supreme Court case of Town of Greece v. Galloway, writes:
“To begin to see what has gone wrong in the Town of Greece, consider several hypothetical scenarios in which sectarian prayer–taken straight from this case’s record–infuses governmental activities. None involves, as this case does, a proceeding that could be characterized as a legislative session, but they are useful to elaborate some general principles. In each instance, assume (as was true in Greece) that the invocation is given pursuant to government policy and is representative of the prayers generally offered in the designated setting…
It’s election day, and you head over to your local polling place to vote. As you and others wait to give your names and receive your ballots, an election official asks everyone there to join him in prayer. He says: “We pray this [day] for the guidance of the Holy Spirit as [we vote] . . . . Let’s just say the Our Father together. ‘Our Father, who art in Heaven, hallowed be thy name; thy Kingdom come, thy will be done, on earth as it is in Heaven. . . .'” And after he concludes, he makes the sign of the cross, and appears to wait expectantly for you and the other prospective voters to do so too.” [Kagan dissent, p. 3 – citation omitted]
Justice Alito, concurring with the majority, writes on this point:
“This brings me to my final point. I am troubled by the message that some readers may take from the principal dissent’s rhetoric and its highly imaginative hypotheticals. For example, the principal dissent conjures up the image of … an official at a polling place who conveys the expectation that citizens wishing to vote make the sign of the cross before casting their ballots. Although I do not suggest that the implication is intentional, I am concerned that at least some readers will take these hypotheticals as a warning that this is where today’s decision leads–to a country in which religious minorities are denied the equal benefits of citizenship.
Nothing could be further from the truth. All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.” [Alito concurrence, p. 13]
Mind you, these are just hypotheticals – “highly imaginative” or not – but I still find them fascinating for two major reasons:
- They suggest that the Court does think of voting as a governmental function that requires interaction between people, not just laws and machines – a small point, but one which could prove important and one which has the added advantage of being true; and
- With the (admittedly hypothetical) prospect of prayer at the polling place in the mix, issues like voter ID and Internet voting suddenly seem like a walk in the park!
Thanks, as always, to Rick for digging into the details of the Court’s holdings – albeit in a very important (if non-election-related) case – to unearth this nugget!