Legal Memo essay

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prayers should be allowed, does the majority opinion written by Justice Kennedy or Justice Kagan's dissent more accurately characterize the Town of Greece meetings as being similar or dissimilar from the legislative sessions in Marsh?

Reasoning and Analysis: In his opinion, Justice Kennedy takes the position that a town hall meeting is essentially similar to a legislative session, but fails to ignore the fact that legislative sessions, while open to the public, exist for the very specific purpose of legislators engaging in legislation. Any type of prayer offered in that situation is offered for the purposes of the legislators who, at least theoretically, come to the table with the same level of power as the other legislators with whom they are negotiating, and as representatives of the people, not in a personal capacity. There seems to be a difference between that type of meeting and a town-hall meeting, which does not simply focus on the business of establishing legislation.

In fact, Justice Kagan differentiates the town hall from the legislative meeting described in Marsh. To her, "The town hall here is a kind of hybrid. Greece's Board indeed has legislative functions, as Congress and state assemblies do, and that means some opening prayers are allowed there. But much as in my hypotheticals, the Board's meetings are also occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters."

In other words, many of the participants or observers at the town hall were in the position of petitioning members of the board, which could have resulted in them feeling compelled to participate in prayer, which would have First Amendment implications. Therefore, the fact that these prayers were derived from an exclusively Christian background may have provided an element of coercion. According to Kagan, the set-up of the town hall, "calls for Board members to exercise special care to ensure that the prayers offered are inclusive, that they respect each and every member of the community as an equal citizen.[2] But the Board, and the clergy members it selected, made no such effort."

Justice Kagan's description of the ways that the town hall is different from the legislative session described in Marsh is based upon the differential impact of the two different types of meetings on citizens, which makes the First Amendment arguments even more salient. An elected representative may be expected to speak even if he or she felt as if the government were making attempts to silence his or her voice, but the same burden should not be placed upon citizens.

Conclusion: Justice Kagan's dissent more accurately characterizes the Town of Greece meetings as being dissimilar from the legislative sessions in Marsh because she describes the potential chilling impact on citizens in her dissent, which Kennedy ignores in his majority decision.

Issue 2: In connection with determining whether prayers should be allowed, are the county commission meetings more likely to be viewed by the courts as similar to the legislative sessions in Marsh or to the town meetings in Town of Greece?

Reasoning and Analysis: Because the majority in Town of Greece characterized the town meetings as very similar to the legislative sessions in Marsh, this question is a difficult one to answer. The majority did not see any significant differences between the two types of meetings. Moreover, it appears that the majority would not have seen any significant differences between the two types of meetings, absent an indication that people at the town hall were somehow experiencing overt discrimination as a result of the prayers. According to Kennedy, "The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person's acquiescence in the prayer opportunity."

As a result, it seems as if the majority of the Court sees no difference between the meeting in Marsh and the meetings in Town of Greece, and, therefore, that the county commission meetings would be seen as similar to both.

However, in Kagan and Breyer's dissents, they point out that the town meetings in Town of Greece differ from the legislative sessions in Marsh because people are often in the position of advocates or petitioners in front of the town meetings. When viewed in that context, it becomes clear that the county commission meetings are closer to the town meetings in Town of Greece than the legislative meetings in Marsh. The county commission meetings include hearings and include testimony, which takes them outside of the legislative purview of legislative meetings.

Conclusion: The county commission meetings are more likely to be viewed by the courts as similar to the town meetings in Town of Greece than to the legislative sessions in Marsh, but, given the majority's opinion in Town of Greece, this difference is unlikely to impact whether the behavior implicates the First Amendment.

Issue 3:Analyze Justice Breyer's and Justice Kagan's dissents' criticisms of (i) the manner in which the Town of Greece invited persons to pray and (ii) the content of the prayers.

Reasoning and Analysis: Both Justice Breyer and Justice Kagan had concerns that the prayers were aligned with a single specific religion. The religion in question was Christianity, but both justices made it clear that they would find the focus on a single religion to be troubling, regardless of the religion. After describing similar scenarios, Justice Kagan pointed out that, "One glaring problem is that the government in all these hypotheticals has aligned itself with, and placed its imprimatur on, a particular religious creed."

They only invited members of clergy from in the town, despite the fact that they were aware that there were only Christian clergy in the town, and despite the fact that they were well aware of the fact that not everyone in the town was a Christian. Justice Breyer points out that the problem is not that all of the prayers were Christian, but that "in a context where religious minorities exist and where more could easily have been done to include their participation, the town chose to do nothing."

The fact that the prayers were predominantly Christian was particularly troubling to Justice Kagan, who pointed out that town of Greece made no efforts to include faiths other than Christianity. "The practice at issue here differs from the one sustained in Marsh because Greece's town meetings involve participation by ordinary citizens, and the invocations given directly to those citizens were predominantly sectarian in content. Still more, Greece's Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought to involve, accommodate, or in any way reach out to adherents of non-Christian religions."

Moreover, Justice Breyer's dissent makes it clear that this omission did have a real-life impact on the people in the town. "First, Greece is a predominantly Christian town, but it is not exclusively so. A map of the town's houses of worship introduced in the District Court shows many Christian churches within the town's limits. It also shows a Buddhist temple within the town and several Jewish synagogues just outside its borders."

That clergy from these different religions were not asked to participate in the meetings shows the type of omission that supported the petitioner's claims that the town meetings were, in fact, supporting a single religion. Kagan believed that the majority ignored the obvious and points out that, "But no one can fairly read the prayers from Greece's Town meetings as anything other than explicitly Christian, constantly and exclusively so. From the time Greece established its prayer practice in 1999 until litigation loomed nine years later, all of its monthly chaplains were Christian clergy."

Conclusion: Justices Breyer and Kagan took issue with the fact that the town openly sought Christian clergy and only had Christian prayers, which they felt was an unacceptable endorsement of a single religious practice, despite significant evidence that there were other religious groups within the town, which had clergy available to conduct the prayers.

Issue 4: Is the commission's proposed method of inviting persons to pray acceptable under the parameters set forth in the majority opinion in Town of Greece?

Reasoning and Analysis: According to the majority opinion in Town of Greece, whether or not a prayer is acceptable depends less upon content and more upon other factors to be considered. According to Kennedy, "the inquiry remains a fact-sensitive one that considers both the setting in which the prayer arises and the audience to whom it is directed."

One of the considerations is when the prayer is offered. For example, the Court determined that it was appropriate to limit the placement of the prayer to the opening of the meeting or session "where it is meant to lend gravity to the occasion and reflect values long part of the Nation's heritage."

The proposed prayers comply with this constraint.

Moreover, the Court is not troubled by the idea that the prayers will end up…[continue]

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