Prayer at public government sessions was back before the Supreme Court this morning. It’s been thirty years since the Court last visited the issue when it ruled that it was constitutional for the Nebraska legislature to begin the day with a prayer. This time the prayer is at local government meetings of the Town of Greece, New York.
There was enough interest in the case for a group of law students spent the night in line outside the Court. Once they finally got their seat passes this morning, the Court’s cafeteria was a good place for a nap.Also in the cafeteria were several clergy, and I spied a group of nuns in the courtroom admiring the friezes, buttocks and all.
Attorney Thomas Hungar argued for the Town of Greece. As Hungar began Justice Kagan interrupted him to read an overtly Christian prayer from the record and asked if that would be permissible here at the Supreme Court.
University of Virginia law professor Douglas Laycock, representing the two women who are challenging the town’s prayer, Susan Galloway and Linda Stephens, was asked by Justice Alito to give an example of a prayer that would not offend anyone. “I don’t think it’s possible,” said Alito, “to compose anything that you could call a prayer that will be acceptable to all of these groups.” “You can’t treat everyone equally without getting rid of prayer altogether,” Laycock responded.
The case is Town of Greece v. Galloway
A long line of spectators and a smattering of demonstrators, some with halloween themed placards – as well as two suspected C-span interns with a crappy banner that demanded “Cameras in the Court NOW!” – were on the Supreme Court plaza this morning for the Court’s latest go at campaign finance.
The case, McCutcheon v. FEC, is brought by a wealthy Alabama businessman who is challenging the limit on total contributions during a two-year election cycle. Current law limits individual contributions to candidates to $48,600 and $74,600 to parties and PACs during the two-year cycle. That the law limits the number of candidates to whom he could donate $1776 Shaun McCutcheon considers a violation of his First Amendment right to free speech.
A lawyer for Senator Mitch McConnell argued that limits on the aggregate contributions should meet the test of strict scrutiny to pass constitutionality.
While Solicitor General Donald Verrilli warned that without the limits elections could be dominated by wealthy donors.
Lyle Denniston’s story here.
A few sketches from today’s Supreme Court arguments in Snyder v. Phelps. Fred W. Phelps and his Westboro Baptist Church, whose members are primarily family, have a practice of picketing the funerals of dead soldiers with signs reading “Thank God for Dead Soldiers,” “Fag Troops” and “God Hates You”. The father of one of those fallen soldiers, Lance Cpl Matthew Snyder, sued the church in court and won, but the judgement was overturned on appeal. The lawyer representing the bereaved father – Sean Summers, pictured below and above – began his argument : “We’re talking about a funeral. Mr. Snyder simply wanted to bury his son in a private, dignified manner”
On the other side, with the bigots, is the 1st Amendment freedom of speech. Numerous news organizations and First Amendment organizations filed briefs supporting the Kansas church. Arguing the free speech side was the daughter of the church’s pastor, Margie Phelps, pictured below.
After the argument Ms. Phelps predicted her side would win. “They’re going to uphold the law of the land that you may express a contrary view in a public forum without being sued.”
Dahlia Lithwick sums it up best here.
“The First Amendment does not protect you from criticism or even nasty phone calls” said Justice Scalia in questioning a lawyer representing Referendum 71 petition-signers who want to remain anonymous.
The attorney for the petitioners, James Bopp, Jr. argued that signing the referendum petition, which seeks to repeal Washington’s “everything but marriage” domestic partners rights law, is an exercise of free speech protected by the First Amendment. “No person should suffer harassment from participating in our political process,” Bopp said.
Washington state’s position is that signing a referendum petition is a legislative act. “The petitions for a referendum or an initiative are telling the government to do something” argued Washington’s Attorney General Robert McKenna.
The case is Doe #1 v. Reed.
Georgetown law professor David D. Cole tried to persuade the Justices that his client, the Humanitarian Law Project, was only engaged in benign, nonviolent activities when it assisted the PKK, a Kurdish separatist group on the U.S. list of terrorist organizations. A 1996 law makes it a crime to provide “material support” to such groups.
Cole argued that the kind of speech activities, such as legal assistance, that the Humanitarian Law Project wants to do should be protected by the 1st Amendment.