Dane on Legislative Prayer

Former CLR Forum guest Perry Dane has a typically thoughtful post about the legislative prayer decision. The post offers a distinctively Brennan-esque, separationist perspective, with two moving parts: legislative prayer should be unconstitutional for separationist reasons; but if it is to be constitutional, legislative prayer should not be policed by the Court for ecumenical sufficiency. A bit from the second half of the argument:

To forcefully strip legislative prayer of its rootedness in particular faith traditions or to demand a compulsive even-handedness in rotations of chaplains would only further trivialize and politicize the act.

That’s not to say that public prayers should be “sectarian.”  Quite the contrary.  Religious (and even sympathetic non-religious) folk can find ways to pray together. And the wisest religious traditions demand sensitivity to other faiths (and persons of no faith) in the public arena. But if the Constitution is to allow official public prayer (which, as I’ve said, it shouldn’t), then it has no business demanding such wisdom as the price of admission to the halls of government.

Justice Brennan and Justice White from the Catholic Bishops’ Point of View

During his time on the Rehnquist Court, Justice Brennan voted in seven cases in which the United States Conference of Catholic Bishops (the “USCCB” or “Bishops’ Conference”) filed an amicus curiae brief. He voted for the party supported by the Bishops’ Conference in three out of those seven cases. By contrast, during his time on the Rehnquist Court, Justice White voted in ten cases in which the USCCB filed an amicus curiae brief (the same seven as Justice Brennan, plus three more). He voted for the party support by the Bishops’ Conference in all ten of those cases.

The low level of agreement between Justice Brennan and the Bishops’ Conference is notable given that Justice Brennan was the last beneficiary of a so-called “Catholic seat” on the Supreme Court.  And Justice Brennan’s voting pattern presents an interesting contrast with Justice White’s.  The contrast is noteworthy because President Kennedy appointed White. As the country’s first (and thus far only) Catholic President, Kennedy could not politically afford to nominate a Catholic to the Supreme Court.  By contrast, Brennan’s Catholicism was an important factor in making him an attractive nominee for Eisenhower.  Thus, one reason that Brennan was appointed is that he was a Catholic, while one reason White was appointed is that he was not a Catholic.  Yet White ended up consistently voting with the Catholic bishops on the Rehnquist Court, while Justice Brennan had one of the lowest rates of agreement during the same time period.

There were five other Justices who voted in all ten cases in which the Bishops’ Conference filed an amicus curiae brief and in which Justice White voted: Chief Justice Rehnquist, Justice Blackmun, Justice Stevens, Justice O’Connor, and Justice Scalia. Rehnquist and Scalia joined White in voting for the party supported by the Bishops’ Conference in all ten of these cases. Justice O’Connor voted for that party in eight out of those ten cases, Justice Stevens in three, and Justice Blackmun in two. In the first several years of the Rehnquist Court, then, the three Justices with the best track record from the point of view of the Bishops’ Conference consisted of two Protestants (Chief Justice Rehnquist and Justice White) and one Catholic (Justice Scalia).

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