Posted on by Marc O. DeGirolami · 1 Comment

The Return of the Jurisprudence of Tradition: 10 Points on the Kennedy Opinion in Town of Greece

Having read the decision, I thought I’d write up three separate posts on Town of Greece v. Galloway. This first post discusses Justice Kennedy’s opinion for the Court. The next one will talk about Justice Kagan’s dissent and Justice Alito’s concurrence. The final post will discuss Justice Thomas’s concurrence (joined in part by Justice Scalia).

Here are 10 points on Justice Kennedy’s opinion. The opinion was joined in full by Chief Justice Roberts and Justice Alito. It was joined by Justices Scalia and Thomas except as to Part II(B).

1. By far the most prominent theme in Justice Kennedy’s opinion is the role of tradition and historical practice in validating the practice of legislative prayer. That point is repeated no less than six or seven times in all kinds of contexts. The practice is “part of our expressive idiom” and our “heritage.” Justice Kennedy writes that “Marsh is sometimes described as “carving out an exception” to the Court’s Establishment Clause’s jurisprudence,” inasmuch as no “tests” were applied in Marsh, but in reality, “[t]he Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause” That’s important. It indicates that the mode of analysis in Marsh was not a carve-out, so much as the place where all Establishment Clause analysis begins, and, under certain circumstances, where it ends.

2. Note the emphasis on both history and particularism in the following: “Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted….A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.” Very interesting. The claim seems to be that it is the rigidity of the tests themselves in this area, and their failure to grant a kind of presumptive validity to entrenched social practices and traditions, which itself generates religious division.

3. In keeping with points #1 and #2, neither the Lemon test nor the endorsement test figure in Kennedy’s analysis at all. There is only a whisper of endorsement in Kennedy’s claim in Part II(B) (which JJ. Scalia and Thomas did not join) where he writes that “[i]t is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews.” That certainly doesn’t mean that these tests are dead. They just are largely MIA.

4. Framing: Everybody–Justice Kennedy, Justice Kagan in dissent (of which more soon), and the parties–seems to have accepted the following framing by the Court: “The Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.” No member of the Court resisted this framing or opined that this was an inappropriate or wrong-headed sort of inquiry.

5. “Sectarian” prayers: “An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases.” The Court here disavows the claim that only nonsectarian prayers are within Marsh’s compass. Again the basis for the claim is in part historical: “The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today.” The growing diversity of the country embraces a kind of deep substantive pluralism as well. The County of Allegheny dictum characterizing Marsh as it did–relying, that is, on the fact that the chaplain in Marsh “removed all references to Christ”–is also repudiated by the Court. Kennedy writes: “Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content.”

6. Entanglement and majoritarianism in supervision: Kennedy further remarks that requiring the Court to supervise the content of prayers would demand government over-involvement in religious matters. The cite here is to Hosanna-Tabor, not to Lemon. It would also inevitably result in majoritarian favoritism, as courts would demand words acceptable only to a majority, the effect of which would be to exclude a minority.

7. Limits: the limits on the acceptability of legislative prayer seemed to be those which “over time…denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.” Also, where “many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort.”

8. Note the words “over time” in the previous statement. Although plaintiffs presented some evidence that two of the prayer practice occasions did not serve the traditional functions of legislative prayer as formulated by the Court, these two occasions “do not despoil a practice that on the whole reflects and embraces our tradition. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation.” That is quite a different test than any that existed before. Moreover, the fact that nearly all of the congregations in town are Christian and therefore are substantially represented–or over-represented–in the legislative prayer practice does not itself render the practice unconstitutional: “So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.”

9. On the claim that this case could be distinguished from Marsh on the ground that civilians are coerced to participate, the plurality says that the principal purpose of legislative prayer “is largely to accommodate the spiritual needs of lawmakers and to connect them to a tradition dating to the time of the Framers….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.”

10. Finally, Lee v. Weisman, which Justice Kennedy authored, is distinguished on the ground that nobody is dissuaded from leaving the meeting room during a prayer, arriving late, or making a later protest. Such activities occur regularly and pass without notice. Quiet acquiescence, in this context as compared with the school context, “does not suggest agreement with the ideas and words expressed.”

Posted on by Marc O. DeGirolami

Supreme Court Reaffirms the Constitutionality of Legislative Prayer

The Supreme Court has ruled in favor of the Town of Greece in Town of Greece v. Galloway, a case involving the constitutionality of the practice of legislative prayer. The decision is here.

I will have more comments on this important decision after having read it through. Suffice it to say for now that the language and jurisprudence of tradition figures extremely prominently in both Justice Kennedy’s plurality opinion and in Justice Kagan’s main dissent.

Posted on by Marc O. DeGirolami

Lester Reviews The Tragedy of Religious Freedom

The Review of Politics has published a thoughtful review by Emile Lester (political science, University of Mary Washington) of The Tragedy of Religious Freedom. The review is unfortunately behind a paywall, but here’s a portion of it:

The crucial contribution of Marc O. DeGirolami’s The Tragedy of Religious Freedom to both this literature [the literature of tragic conflict] and to legal theory is to explain the tragic approach’s special relevance to religious freedom disputes. DeGirolami’s treatment is deeply humane and wears its considerable erudition lightly and elegantly. Where much legal theory soars into abstraction, DeGirolami’s examples are grounded in wordily insight and empathy. This is fitting as DeGirolami targets reductive, formulaic approaches. These “comic monist” approaches wield master values such as equal liberty or neutrality as silver bullets promising to vanquish opposing concerns and slay the confusion that many religious liberty disputes appear to involve. DeGirolami, by contrast, practices a commendable humility. Religious liberty cases resemble forests teeming with rich, heterogeneous, and organic elements. DeGirolami would not tame this wilderness artificially by transforming it into a neatly manicured garden. His book offers thoughtful suggestions for how to resolve prominent cases, but acknowledges that others may weigh these cases’ complex factors differently to arrive at alternative conclusions.

Professor Lester goes on in the review to offer some interesting criticisms of the book, but I will let readers go and find those on their own.

Posted on by Mark Movsesian

Misunderstanding Putin

biophoto_150_1Last Friday on MSNBC’s “Morning Joe”–the breakfast salon of the bien pensant–Under Secretary of State for Public Diplomacy and Public Affairs Rick Stengel (left) took on Vladimir Putin. Stengel attempted to explain how Putin’s conduct in Ukraine damages Putin’s own interests. Putin, Stengel told his interlocutor Steven Rattner with an air of frustration, “is making fundamental errors” that would get him in trouble with the Russian people. “He’s moving further away from the West,” Stengel said, at a time when “people want to be closer to the West.” Rattner agreed that Putin is being “irrational.” Isn’t it obvious?

In fact, it isn’t at all obvious that Putin is being irrational or that people around the world want to be closer to the West, at least not in the way Stengel seems to think. It is very difficult for Americans to understand this, but on many issues we are cultural outliers. America, especially its professional class, has what psychologists call a WEIRD culture—Western, Educated, Industrialized, Rich, and Democratic. WEIRDs are very secular. They place great emphasis on personal autonomy; indeed, autonomy may be their most important value. That’s one reason why America works so hard to support movements like feminism and gay rights abroad.

By contrast, most of the world’s cultures are not WEIRD. They are not secular and do not see personal autonomy as the most important value. Jonathan Haidt explains this very well in his recent book, The Righteous Mind. Many world cultures, Haidt writes, have an“ethic of community” that sees people principally as members of collectives—families, tribes, and nations—with strong claims to loyalty. Many have an “ethic of divinity,” which holds that people’s principal duty is to God, not themselves. “In such societies,” Haidt writes, “the personal liberty of secular Western nations looks like libertinism, hedonism, and a celebration of humanity’s baser instincts.”

Putin is many things, but he is not a WEIRD. He has been making clear for years that he does not aspire for Russia to become a WEIRD society. The values he promotes are nationalism, authority, loyalty, and religion. Especially religion. As a perceptive post by national security expert John Schindler explains, Putin’s worldview contains a large element of Holy Russia/Third Rome ideology, “a powerful admixture of Orthodoxy, ethnic mysticism, and Slavophile tendencies that has deep resonance in Russian history.” Of course, Putin may be insincere. Like many dictators, he may simply be using religion to his advantage. But, even if his convictions are phony, the challenge he poses to the West is fundamentally a cultural and ideological one.

And many Russians support him. Putin has been extremely good at exploiting the suspicion that many Russians feel about the West and its values–especially America and its values. Notwithstanding Stengel’s assertion, Putin is not acting against the wishes of his own people. Indeed, his popularity at home has been growing since the start of the Ukraine crisis. And, as Schindler explains, it’s not only Russians who think they way Putin does. “There are plenty of people in the world who don’t like Putin or Russia, yet who are happy that someone, somewhere is standing up to American hegemony.” The thuggery in Ukraine will cost him some of this support. But many people will be inclined to dismiss Putin’s conduct as a reassertion of Russia’s traditional interest in its near-abroad.

In other words, our conflict with Russia is not simply about politics, or economics, or even national security. It’s about culture and values. It’s not that Putin insufficiently appreciates what WEIRDness requires. He’s not a WEIRD at all. He doesn’t want to be. The people who run our foreign policy should understand this. If Stengel’s appearance on Friday is any indication, they don’t.

Posted on by Marc O. DeGirolami

Curran, “Papist Devils”

Interesting new work in the history of religion in America–Papist Devils: Papist Devils
Catholics in British America, 1574-1783, by Robert Emmett Curran (Georgetown) forthcoming in June from Catholic University of America Press. The publisher’s description follows.

This is a brief highly readable history of the Catholic experience in British America, which shaped the development of the colonies and the nascent republic in the seventeenth and eighteenth centuries. Historian Robert Emmett Curran begins his account with the English reformation, which helps us to understand the Catholic exodus from England, Ireland, and Scotland that took place over the nearly two centuries that constitute the colonial period. The deeply rooted English understanding of Catholics as enemies of the political and religious values at the heart of British tradition, ironically acted as a catalyst for the emergence of a Catholic republican movement that was a critical factor in the decision of a strong majority of American Catholics in 1775 to support the cause for independence. Papist Devils utilizes archival material, newspapers, and other contemporary records in addition to a broad array of general histories, monographs, and dissertations dealing with the British Atlantic world. The unprecedentedly broad scope of this study, which encompasses not only the thirteen colonies that took up arms against Britain in 1775, but also those in the maritime provinces of Canada as well as the ones in the West Indies, constitutes a unique coverage of the British Catholic colonial experience, as does the extension of the colonial period through the American Revolution, which was its logical dénouement.