Garnett on the Legislative Prayer Case

My friend Rick Garnett has an extremely sensible post about the legislative prayer case, Town of Greece v. Galloway, which will be heard this term by the Supreme Court. A bit from Rick’s analysis:

[J]udges evaluate, and sometimes disallow, policies that majorities considered, argued about, and embraced.  Because, again, majority rule is the usual way we go about political decisionmaking, this evaluation and – especially! – disallowing is a big deal, and it’s important that the work of judicial review be done right.  Whether or not it is depends, I suggest, on (at least) three related variables:  First, identifying, as correctly as possible, the judicially enforceable meaning of the constitutional text in question; secondthe prudent design and development of workable doctrines that courts can use to decide real-world cases; and third, affording the appropriate deference, if any, to those actors whose decisions are being reviewed and who, presumably, decided that those decisions were constitutionally sound . . . .

[T]he Court can aspire to do well with respect to…doctrine and deference.  The court of appeals, its opinion states, saw “no test-related substitute for the exercise of legal judgment” and it characterized the case as a “fact-intensive” one “which def[ies] exact legal formulas[.]”  In the end, though, it couched its decision in “endorsement test” terms, and reported that “several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials,” supported the conclusion that “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.”  But neither throwing aside doctrines and tests in favor of “legal judgment” nor engaging in unstructured speculation, however “contextual,” regarding imagined reactions, impressions, and beliefs that “can give only limited guidance to municipalities that wish to maintain a legislative prayer practice” is a sensible or appropriately deferential way for a reviewing court to play its role.  A relatively clear, historically rooted standard, the tool employed in the Marsh case, works better, and is the more consistent justification for judicial review.

Of course, not all permissible practices are best practices or even good ideas.  Even if the court of appeals reached the wrong conclusion, in an unsatisfying way, about what the Constitution allows, its suggestion to towns that they “pause and think carefully before adopting legislative prayer” is sound advice.  Although it is true that many of us – and, in many places, most of us – believe that it is both appropriate and right to seek God’s help with the important business of living together and well in political communities, it is also true that ours is a religiously pluralist society that is becoming more so.  In such a society, as the American Jesuit scholar, John Courtney Murray, wrote, “[men and women] of all religions and of no religions must live together in conditions of justice, peace, and civic friendship.”  The line that separates policies that build up this friendship from those that tear it down is important, even if judicial review is not always the best way to find it.

Rick’s post is part of an on-line symposium at SCOTUSblog discussing various features of the case; the other posts may be found here.

For what it’s worth, I think the most interesting thing about the case does not concern legislative prayer itself, but the fate of the endorsement test, though this is not an issue that the Court would need to reach if it finds itself in a minimalist mood.

Osman, “Egypt on the Brink: From Nasser to The Muslim Brotherhood”

This month, Yale University press publishes a new edition of Egypt on the Brink: From Nasser to The Muslim Brotherhood, by Tarek Osman.  The publisher’s description follows.Brink

In this immensely readable and thoroughly researched book, Tarek Osman explores what has happened to the biggest Arab nation since President Nasser took control of the country in 1954. This new edition takes events up to summer 2013, looking at how Egypt has become increasingly divided under its new Islamist government.

Anderson, “Lawrence in Arabia: War, Deceit, Imperial Folly and the Making of the Modern Middle East”

Last month, Random House published Lawrence in Arabia: War, Deceit, Imperial Folly and the Making of the Modern Middle East by Scott Anderson.  Lawrence in ArabiaThe publisher’s description follows.

The Arab Revolt against the Turks in World War One was, in the words of T.E. Lawrence, “a sideshow of a sideshow.”  Amidst the slaughter in European trenches, the Western combatants paid scant attention to the Middle Eastern theater.  As a result, the conflict was shaped to a remarkable degree by a small handful of adventurers and low-level officers far removed from the corridors of power.

Curt Prüfer was an effete academic attached to the German embassy in Cairo, whose clandestine role was to foment Islamic jihad against British rule.  Aaron Aaronsohn was a renowned agronomist and committed Zionist who gained the trust of the Ottoman governor of Syria. William Yale was the fallen scion of the American aristocracy, who traveled the Ottoman Empire on behalf of Standard Oil, dissembling to the Turks in order gain valuable oil concessions.  At the center of it all was Lawrence.  In early 1914 he was an archaeologist excavating ruins in the sands of Syria; by 1917 he was the most romantic figure of World War One, battling both the enemy and his own government to bring about the vision he had for the Arab people.

The intertwined paths of these four men – the schemes they put in place, the battles they fought, the betrayals they endured and committed – mirror the grandeur, intrigue and tragedy of the war in the desert.  Prüfer became Germany’s grand spymaster in the Middle East.  Aaronsohn constructed an elaborate Jewish spy-ring in Palestine, only to have the anti-Semitic and bureaucratically-inept British first ignore and then misuse his organization, at tragic personal cost.  Yale would become the only American intelligence agent in the entire Middle East – while still secretly on the payroll of Standard Oil.  And the enigmatic Lawrence rode into legend at the head of an Arab army, even as he waged secret war against his own nation’s imperial ambitions.

Based on years of intensive primary document research, lawrence in Arabia definitively overturns received wisdom on how the modern Middle East was formed.  Sweeping in its action, keen in its portraiture, acid in its condemnation of the destruction wrought by European colonial plots, this is a book that brilliantly captures the way in which the folly of the past creates the anguish of the present.

The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five. Since last week, Douglas Laycock remains at #1, Perry Dane and Zoe Robinson have switched places, so that Zoe Robinson is now at #2 while Perry Dane is #3, Richard Garnett remains at #4, and Ian C. Bartum joins the list at #5, replacing Christopher C. Lund.

1. Religious Liberty and the Culture Wars by Douglas Laycock (U. of Virginia, School of Law) [281 downloads]

2. What is a ‘Religious Institution’? by Zoe Robinson (Depaul University College of Law) [253 downloads]

3. Doctrine and Deep Structure in the Contraception Mandate Debate by Perry Dane (Rutgers, School of Law) [242 downloads]

4. ‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense by Richard W. Garnett (Notre Dame Law School) [141 downloads]

5.Book Review: ‘The Tragedy of Religious Freedom’  by Ian C. Bartum (University of Nevada, Las Vegas) [98 downloads]