This Case is Not (Only) About Paving Poor Preschool Playgrounds

In fact at this point Trinity Lutheran Church of Columbia v. Pauley may be more about post-purchase depression than anything else. This case involves religion; a topic the Roberts Court has mostly shied away from even when it had the benefit of nine Justices. But the Court agreed to hear it before Justice Scalia died.

There are two ways of looking at this case, both of which are hard to argue with: state aid to religious organizations means less money for secular causes, and all preschool students should have access to safe playgrounds no matter where they go to school. Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

First Circuit

  • Town of Johnston v. Fed. Housing Finance Agency, No. 13-2034 (Aug. 27, 2014): The court affirmed the dismissal of the municipalities’ claim that Fannie Mae and Freddie Mac failed to pay taxes on property transfers; the court found that statutory exemptions from taxation applied. As the court put it: “Six other circuits have recently considered this attempt to shoe-horn a transfer tax into a real property tax, and they have unanimously rejected the argument.”

Second Circuit

Third Circuit Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT pillars

First Circuit

Snyder v. Gaudet, No. 12-1422 (June 25, 2014) (In 42 U.S.C. 1983 action alleging violation of equal protection because city applied zoning restriction differently to Snyder than to prior owner, granting qualified immunity to defendants because right was not clearly established): Continue reading


Third Circuit: Establishment-Clause Challenge To Existing Display Not Time-Barred

Bible Baptist Church Welcomes You!  1 Block –>

So reads the sign—decorated with a gold cross and white Bible—that the Borough of Shickshinny, Pennsylvania, allowed to be placed on its

A nearby resident, Francene Tearpock-Martini, objected. She sued the Borough under 42 U.S.C. § 1983, alleging that the sign violates the Establishment Clause.

Tearpock-Martini’s lawsuit had a problem though.

Tearpock-Martini had commenced the suit more than two years after the church sign was installed. Under Pennsylvania law, tort actions generally must be brought within two years. And 1983 actions often borrow the statute of limitations from state law.

Is her suit time-barred? In a decision this week, the Third Circuit said that it is not: Continue reading


Roadmap for Constitutional Prayer at City Council Meetings

Justice Kennedy is better known for his rhetorical flair than his practical  But his majority opinion in Town of Greece v. Galloway provides a roadmap local governments can follow to stay out of trouble when beginning city council meetings with a prayer.

Town of Greece resolves two issues:  whether prayers must be nonsectarian and whether prayers before city council meetings are coercive.

The Court concludes that sectarian prayers that overtly refer to a specific faith are okay—to a point.  Sectarian prayers can go too far Continue reading


Round-up of Greece Analysis

In our earlier post, we reported the Supreme Court’s decision in Greece v. Galloway, 8468059167_e8ebfeedbf_zruling that the Town’s prayer practice is not an unconstitutional establishment of religion. This post tracks some commentary on the case:

SCOTUSblog has been providing analysis of the divided decision:

The stark difference between the majority opinion in the Allegheny County case and the Court’s new opinion in the Town of Greece case illustrated the progress made by Justice Kennedy toward the Court’s full embrace — although for differing reasons among five Justices who determined the outcome – of the “coercion” test in determining whether a government practice amounted to an “establishment of religion” in violation of the First Amendment.

Eugene Volokh of UCLA School of Law provides his reactions: Continue reading


Supreme Court Rules That Town’s Prayer Practice Is Constitutional

The Supreme Court has released its decision in Town of Greece v. Galloway, 8468059167_e8ebfeedbf_zconcluding that the Town’s prayer practice has a “permissible ceremonial purpose” and is “not an unconstitutional establishment of religion.”

Writing for the Court, Justice Kennedy ruled that the Town’s prayer practice “fits within the tradition long followed in Congress and the state legislatures.”

Some highlights from his opinion: Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT stairs

Second Circuit

Fourth Circuit


Supreme Court Hears Argument in Town of Greece

Today, the Supreme Court heard argument in Town of Greece v. Galloway, No. 12-696, which asks whether the Town’s legislative-prayer practice violates the Establishment Clause. We previously discussed the case here.

Here is a transcript of the oral argument.

And here is a recap from Lyle Denniston. He concludes by building on a comment from Justice Kagan:

Justice Kagan tried to sum up: Isn’t the question here, she said, whether public meeting prayers with references to Jesus Christ “will be allowed in a public town session like this one?”  When Laycock agreed that that was the issue, Kagan said it was a hard one, “because the Court lays down these rules and everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways….And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”

In the coming weeks of deliberation in private, the Justices’ challenge may well begin and end with how to keep from making the problem worse.  And, at that point, leaving Marsh v. Chambers intact, allowing local governments to have prayers just as state legislatures and Congress can, might be the least cause of public agitation.




Legislative Prayer and Local Governments: Do You Begin Every Meeting by Violating the Constitution?

The Supreme Court will evaluate local-government prayer practices this term.

The Supreme Court will evaluate local-government prayer practices this term.

If your community starts its government meetings with a prayer, it might be violating the Constitution.

In a case that the Supreme Court will consider in the coming term, Town of Greece v. Galloway, 12-696, the Court will decide whether a local government’s legislative prayer practice runs afoul of the Establishment Clause.

The Second Circuit held that the Town of Greece’s prayer practice is unconstitutional because “an objective, reasonable person would believe [it] had the effect of affiliating the town with Christianity.”

Continue reading