The Supreme Court has two culture-war cases on its menu this term. At the NYRB, David Cole sums up several of them.
Greece v. Galloway addresses the question of “whether government-sponsored religious speech violates the Establishment Clause.” Cole elaborates: “That test, which was most famously advanced by Justice Sandra Day O’Connor in the 1980s, asks whether a reasonable observer would understand the government to be ‘endorsing’ religion in a particular situation. Conservatives have long criticized this test as too hostile to religious expression in the public square, such as when it precludes town ‘crèche’ displays at Christmas. They tend to prefer a narrower test, articulated by Justice Anthony Kennedy, that prohibits official coercion of religious observance, but otherwise tolerates official expression of religious views. Town of Greece v. Galloway asks whether the town board of Greece—a community in upstate New York near Rochester—violates the Establishment Clause when it opens its public board meetings with a prayer, very often a distinctly Christian prayer.”
MuCullen v. Coakley is an abortion-related case, dealing with the “constitutionality of a buffer zone imposed by Massachusetts around clinics that provide abortion”:
“Thirteen years ago, in Hill v. Colorado, the Court rejected a First Amendment challenge to a law that imposed an eight-foot buffer zone around all health care facilities. The Court emphasized that the law providing for the buffer zone in Colorado was neutral in regard to the content of speech, and merely restricted the place of speech. The challengers in McCullen argue that the Massachusetts buffer zone is significantly more problematic. Its much wider buffer zone, barring even presence within 35 feet of the facility, makes virtually any communication impossible. It applies only to abortion clinics, which challengers claim makes it content-based. And the challengers argue that the law favors pro-abortion speech by exempting clinic employees.”
Cole assumes that the “conservatives” on the Court will win these cases, but his question is what kind of conservatives they will provide to be, lower-case or upper-case: “lawyers have argued that the Court can rule for them without questioning any prior precedent—what we might call conservatism with a lower-case ‘c.’ But perhaps sensing a receptive audience, the lawyers in each case have also invited the Court to go further and overturn past precedents altogether—a dramatic step that would confirm a far more radical Court, or conservatism with a capital ‘C.’”
Cole clearly hopes the lower-cases will win.