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The Anti-Defamation League intends to join the case in support of upholding the lower court’s restriction on the town’s prayer practices, and other Jewish organizations and religious denominations are expected to add their voices, as well.
“The town is aligning itself with a certain faith, and that sends an exclusionary message,” said David Barkey, ADL’s national religious freedom counsel. He rejected as irrelevant Lewin’s argument that Judaism does not oppose Christian prayer. “The court doesn’t need to make decisions based on what the Jewish faith believes or does not believe,” Barkey said.
For activists involved in the debate, there is much more at stake than the future of an opening prayer at a small town’s legislative meetings.
A Supreme Court ruling overturning the circuit court’s decision could potentially include a call by the highest court to change the tests for determining when a religious expression violates the Establishment Clause. Currently, these tests include examining whether the government actions have a secular purpose, do not advance or inhibit religion, and do not result in excessive government entanglement in religion. Changing the test could mean that only coercive prayer or proselytizing constitutes a violation.
“I’m not very optimistic,” Barkey said.
Much has changed since these tests were put in place, both in America and in the Supreme Court. None of the justices who decided the 1983 Marsh v. Chambers case, which was the last time the court took on state and church issues, is still on the bench. The court refused back then to overturn the tests that have served as the bedrock of determining violations of the Establishment Clause. But that approach may no longer reflect the Supreme Court justices’ views.
Changes are taking place on the state level, where dozens of court cases have been decided in favor of expanding legislative prayer and of funding religious schools with taxpayer dollars.
Lewin says the shift is also felt within the Jewish community, though at a slower pace. The growth of the Orthodox community and its difficulty in funding religious education have increased the voices favoring the lowering of the wall of separation. Lewin noted that when last faced with a church and state issue in Marsh v. Chambers 30 years ago, the Supreme Court heard only from Jewish activists who opposed legislative prayer.
“The Supreme Court must be informed this time,” Lewin said, “that America’s Jewish population is not unanimous in objecting to Christian prayer or in seeking the suppression of pleas for divine blessings at governmental sessions.”