The court upheld the use of prayer in a case 34 years ago concerning the Nebraska legislature. The court said the prayer was, "deeply embedded in the history and tradition of this country."
But lawyers for Galloway and Stephens argue that their case is different from the Nebraska case. A legislative hearing, they say, is often populated by observers, whereas a town meeting is filled with participants who are often compelled to attend. A lower court ruled against the town of Greece, holding that legislative prayer itself was not unconstitutional, but that the totality of the circumstances surrounding the town's practice amounted to an unconstitutional violation of the Establishment Clause.
Thomas Hungar, a lawyer for the town of Greece, is appealing the decision to the Supreme Court. "Between the shoals of prohibited establishment and improper hostility lies a significant channel in which the government can permissibly respect the religious nature of our people and accommodate the public service to their spiritual needs," Hungar writes in briefs.
The Obama administration has filed a brief in support of the town, arguing that there is no evidence that officials attempted to denigrate any faith. Solicitor General Donald Verrilli Jr. says it is not the role of courts to parse the theological content of a particular prayer. Legal experts say the court might seek a chance to clarify church-state doctrines.
"At the heart of this case," Notre Dame Law School professor Richard Garnett says, "is whether the court should stick with a relatively bright-line rule that treats legislative prayers as presumptively permissible, given their long use in our country, or whether the court should move to more of an all-things-considered inquiry that treats such prayers like Christmas displays and the like."
The court will hear a crucial case concerning presidential power that could all boil down to the interpretation of the word "the". At issue is the Recess Appointments Clause of the Constitution: "the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate . . ."
The case stems from a dispute surrounding President Obama's controversial appointment of board members to the National Labor Relations Board (NLRB), an independent federal agency that enforces federal labor law. The board consists of five members appointed by the president and needs three members to constitute a quorum.
The president was frustrated with Senate inaction in January 2012 and decided to invoke his recess appointment power during what is called a "pro forma" session of Congress. Obama appointed three members of the NLRB. In a "pro forma session," Senators gavel in and out of session in a matter of seconds but no official business is conducted.