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Opinion
Noah Feldman

Say a Prayer for Justice Kennedy

By joining the court’s three Jewish justices, who are also, coincidentally or not, three of its liberals, Sotomayor saved the court from the embarrassment of revealing a church-state split along religious lines.
So, is that the beginning of a clap or a prayer? Photographer: Chip Somodevilla/Getty Images
So, is that the beginning of a clap or a prayer? Photographer: Chip Somodevilla/Getty Images

Thank goodness (but not God) for Justice Sonia Sotomayor. If it weren't for her, today's Supreme Court vote upholding prayer before town council meetings in the upstate New York town of Greece would have been a straight-religion vote, with the court's Catholics voting to uphold and its Jews voting to strike down. By joining the court's three Jewish justices, who are also, coincidentally or not, three of its liberals, Sotomayor saved the court from the embarrassment of revealing a church-state split along religious lines.

The case is going to be a landmark. It's been three decades since, in Marsh v. Chambers, the court last decided to allow legislative prayer, that time in the Nebraska statehouse. In the interim, the Marsh decision has often been considered an outlier from establishment clause jurisprudence, a vestige dependent on the court's desire not to rock the boat by prohibiting a practice that Congress, among others, has followed since its very first meetings, before the First Amendment was enacted.