We have a new species of the benchslap in Town of Greece v. Galloway. What’s worse than one Justice rejecting another Justice’s idea? Relegating it to a concurring opinion.
Justice Breyer proposed a narrow way to resolve this thorny legislative prayer case.
JUSTICE BREYER: Suppose you did this. You combined your two approaches. The town has to — it cannot — it must make a good faith effort to appeal to other religions who are in that area. And then you have these words from the House: “The chaplain should keep in mind that the House of Representatives, or you would say whatever relative group, “is comprised of members of many different faith traditions,” period, end of matter. Is that sufficient, those two things?
MR. LAYCOCK: That would help immensely. We think some of the clergy need more detailed explanation of what that means, but yes, that would help immensely.
JUSTICE KENNEDY: Should we write that in a concurring opinion?
Yes Breyer, you go and write your concurring opinion and let the grownups write the majority opinion.