Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

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.

Berger on Town of Greece and Praying While Smoking

The inimitable Peter Berger has this column on Town of Greece v. Galloway. Here’s the cleverly charming beginning:

In a Benedictine monastery there is a chain smoker. He smokes all the time. He smokes during work, during meals, even during communal prayers. He says that he would become seriously ill if he stopped. The abbot is solicitous about the smoker’s addiction, but this has become such a scandal that he feels constrained to consult the relevant authorities in Rome. He asks, “May one smoke while one prays?” Rome doesn’t act quickly, but after a few months the answer comes back –“No, one may not.” It so happens that a Jesuit is visiting on the day the reply from Rome arrives and the abbot tells him the story. The Jesuit thinks for a moment, and says: “You asked Rome the wrong question. What you should have asked—May one pray while one smokes?”

One could say that, in a decision of May 5, 2014, the Supreme Court of the United States was guided by Jesuit logic.

Want to Understand the Possible Implications of the Legislative Prayer Case?

Then you should read these two posts by Kevin Walsh.

In the first post, Kevin explains the way in which Justice Kagan’s dissent lines up in important ways with the views of Judge J. Harvie Wilkinson in his opinion for the Fourth Circuit in Joyner v. Forsyth County (Justice Kagan explicitly relies on some language in Joyner, but the similarities in outlook run deep).

The second post discusses a pending cert. petition–the Elmbrook School District case out of the Seventh Circuit in which Judges Easterbrook, Posner, and Ripple authored dissents from the court’s en banc opinion–and what might happen to it in light of the Court’s holding in Greece.

Both issues are discussed at length in the article that Kevin and I wrote together–Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory (see in particular Parts I(B) and II(C)). You should read that too!

Justice Thomas’s Concurrence in Town of Greece

One last expository post on Town of Greece v. Galloway, this one on Justice Thomas’s concurrence, which was joined by Justice Scalia as to Part II alone. There has already been a fair quantity of commentary on the case, but little of it has focused on Justice Thomas’s concurrence.

The Thomas concurrence is divided into two sections. The first part restates and develops Justice Thomas’s view, first expressed in Elk Grove Unified School District v. Newdow, that the Establishment Clause should not be incorporated against the states because the Establishment Clause represents a protection for the states against interference by the federal government in matters of religion. Like the Tenth Amendment, the Establishment Clause is not a protection for individual rights. The clause’s incorporation was simply assumed, wrongly and without argument, in the Everson case.

Some discomfited attention is being paid to Justice Thomas’s statement that “[a]s an initial matter, the Clause probably prohibits Congress from establishing a national religion.” How could he only say “probably”? But there is an explanation. The citation for this statement is the excellent book, Church, State, and Original Intent, by religious historian (and Center for Law and Religion board member and former Forum guest) Donald Drakeman. Here is Don at 260 of the book:

The strongest evidence from the constitutional ratifying conventions, the amendment proposals, the records of the congressional debates, and the ratification of the Bill of Rights points consistently in one direction: that Congress should be prohibited from establishing a “national religion.” The First Amendment thus succeeded in turning the hotly contested subject of church-state relations–which had already caused legislative battles in the states and would continue to do so virtually in perpetuity–into a “milk and water” amendment by focusing on the one thing no one wanted and everyone could unite against: a “Church of the United States.” There was no need for the various participants to agree on what that meant, and, indeed, interpretive disagreements arose as early as the first few decades, but, for this review of the understanding of the clause at the time it was adopted, there is no body of evidence that supports any more detailed sense of what the language meant to the people who voted for it or to the American public who received it.

There is therefore enormous uncertainty as to what the clause meant as an original matter (this is one reason that original expected applications originalism is so useful as to the Establishment Clause)–uncertainty that is reflected in the very spare historical record that reveals next to nothing about the clause’s historical meaning. Church-state arrangements in the early republic were, as they are now, deeply unsettled and contested, and the Establishment Clause was not intended to settle them. If the clause is read as Justice Thomas reads it–as a federalism provision–then one must make the inference (and it is an inference) that a national church was prohibited, since a national church would present a major obstacle to the freedom of states to decide on their own church-state arrangements. 

Part II of the concurrence assumes that the clause had been incorporated and then argues that what the clause proscribes is “coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” Note that here there is a kind of unity with Justice Scalia’s view of the scope of protection afforded by the Free Exercise Clause. This “actual legal coercion” test–which the Justices distinguish from a “subtle coercive pressures” test (see Lee v. Weisman) involves the exercise of government power “in order to exact financial support of the church, compel religious observance, or control religious doctrine.” It is therefore unsurprising that Justice Thomas and Justice Scalia did not join Part II(B) of Justice Kennedy’s opinion dealing with the type of coercion required to make out an Establishment Clause challenge (assuming its incorporation against the states).

White on Justice Kagan’s Dissent in Town of Greece

Over at the The Weekly Standard, Adam White picks up and expands insightfully on Justice Kagan’s comments about the nature of American citizens’ relation to their government, which I had noted here. I had not known about Teddy Roosevelt’s remarks concerning “hyphenated Americans.” Here’s a bit from Adam’s post:

On the other side of this spectrum, at its far extreme, we find Teddy Roosevelt’s famous criticism of “hyphenated Americans“:

What is true of creed is no less true of nationality. There is no room in this country for hyphenated Americanism. When I refer to hyphenated Americans, I do not refer to naturalized Americans. Some of the very best Americans I have ever known were naturalized Americans, Americans born abroad. But a hyphenated American is not an American at all. This is just as true of the man who puts “native” before the hyphen as of the man who puts German or Irish or English or French before the hyphen. Americanism is a matter of the spirit and of the soul. Our allegiance must be purely to the United States. We must unsparingly condemn any man who holds any other allegiance. But if he is heartily and singly loyal to this Republic, then no matter where he was born, he is just as good an American as any one else.

Roosevelt reiterated a year later, “let us be Americans, nothing else.” Such sentiments find echoes, perhaps distant, in Justice Kagan’s dissent—at least when she urges each American citizen “performs the duties … of citizenship … not as an adherent to one or another religion, but simply as an American.”

These arguments cut across familiar political lines; indeed, I suspect that all of us occasionally harbor thoughts on both sides of the spectrum. Conservatives might today share DeGirolami’s concerns about Kagan’s dissent (and Roosevelt’s concerns about “hyphenated Americans”); but they might also have bristled, just a few years ago, at Justice Sotomayor’s suggestion that as a justice she would benefit especially from “the richness of her experiences.”

And conservatives are not the only ones who likely have seen both sides of these questions. Indeed, note that Justice Sotomayor herself joined Kagan’s dissent, despite the notes strikingly at odds with her own account of how each judge’s own background affects the judge’s work.

These considerations cut across partisan and ideological lines because there is at least a kernel of truth at each extreme. Americans should not stand before their government exclusively as representatives of particular “little platoons.” But it would be just as mistaken to race to the other end of the spectrum and assert that Americans must strip themselves of all prior attachments and experiences before engaging the public arena—leaving us with, in Father Richard John Neuhaus words, a “naked public square.”

I am not saying that Kagan intended to imply that our public square is and ought to be “naked.” Far from it—if anything, I suspect that she was just a little bit too casual with her opinion’s specifics. (In that respect, she would be in good company lately.)

But even if Justice Kagan was just speaking a little too casually, her casual overstatement is an interesting one. Her offhand remark—and DeGirolami’s response—ought to challenge all of us to think more seriously about what citizenship and civic duty truly entails.

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