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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.

The Traditional Frame: Justice Kagan’s Dissent and Justice Alito’s Concurrence in Town of Greece

In this post, I’ll offer a few comments on Justice Kagan’s principal dissent in Town of Greece v. Galloway, which was joined by Justices Breyer, Sotomayor, and Ginsburg (Justice Breyer also dissented separately). I’ll also briefly consider Justice Alito’s concurrence, which takes on some of the points in the main dissent. I should add that in these posts I am only describing what I take to be notable features of these decisions. I am not intending to evaluate them on the merits, with one small exception at the end of this post.

The most unexpected feature of the dissent is that it accepts the traditional frame propounded by the majority. The dissent explicitly repudiates strict separationism: “I do not contend that principle [of religious equality] translates here to a bright separationist line. To the contrary, I agree with the Court’s decision in Marsh v. Chambers upholding the Nebraska legislature’s tradition of beginning each session with a chaplain’s prayer.” Justice Kagan makes a point later of saying that she thinks Marsh was correctly decided. Indeed, not a single justice of this Court accepted the Brennan/Marshall position in Marsh.

That’s remarkable, inasmuch as Marsh is frequently described in rather unflattering terms by many of my esteemed colleagues: outlier, carve-out, aberration, inconsistent with the doctrine, unprincipled, a vestige of a bygone age–these are generally representative of the legal academy’s dim view of Marsh. And, indeed, it is true that Marsh seems to stand alone against the coursing flow of modern establishment doctrine. Here was a chance for those members of the Court that felt something like this way about Marsh, or worse, to say so–to take a stand in favor of lopping off this traditionary annoyance without very much hurt at all to the primary stream of contemporary establishment doctrine. Yet nobody did.

Instead, the methodological path of the dissent is to accept the traditional frame and then to argue that the facts in this case do not fit within a correct interpretation or reading of that tradition: “And so I agree with the majority that the issue here is “whether the prayer practice in the Town of Greece fits within the tradition long followed in Congress and the state legislatures.” Where I depart from the majority is in my reply to that question….[T]he prayer in Greece departs from the legislative tradition that the majority takes as its benchmark.”

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Yesterday’s Decision in Town of Greece

Another Establishment Clause case, another 5-4 decision. Another fact-specific ruling in which Justice Kennedy provided the deciding vote. Another separate opinion by Justice Thomas arguing that it makes no sense to apply the Establishment Clause against the States in the first place. More high-blown rhetoric about What American Means and why the Court’s decision honors our traditions or betrays them. Just another day at the office for the Justices.

It’s possible to see yesterday’s decision in Town of Greece, the legislative prayer case, as just one more, muddy Establishment Clause case that doesn’t settle much of anything. Justice Kennedy’s opinion for the Court doesn’t announce a hard-and-fast rule. Indeed, he wrote, “it is not necessary to define the precise boundary of the Establishment Clause where history shows that [a] specific practice is permitted.” Legislative prayer has a very long history in America, dating back at least to the Framing. The Town of Greece’s practice of having prayer before the start of  town board meetings fell within that tradition. The Justices adduced several facts to support this: the town had made reasonable efforts to be inclusive, selecting clergy at random from a community guide; prayers took place before the part of the meeting devoted to legislative business; people could come and go as they pleased; there was no indication that the town had deliberately discriminated against minority religions. In a helpful concurrence, Justice Alito pointed out that the difference between the Court’s opinion and Justice Kagan’s dissent turned on disagreements about the proper interpretation of one or two facts.

All this is true. We may look back at Town of Greece as a narrow holding without great consequence. Yet something tells me this decision could turn out to be quite significant. Let me make two quick observations about what I see as important themes in the case: the rejection of nonsectarianism and the embrace of localism.

First, the Court stated very clearly that neutrality does not require that legislative prayer be nonsectarian. It is constitutionally permissible, the Court held, for a town to invite only Christian clergy–or just about–to offer prayers, as long as the town does not intentionally discriminate against minority religions and as long as the prayers do not create a pattern of proselytizing or disparagement of other religions.

This suggests an important shift. A major theme (among others) in the Court’s recent public religious display cases–cases involving creches and the like–is that government displays must be nonsectarian. Religious displays that suggest a preference for one religion over another are unconstitutional. In the context of legislative prayer, however, the Court now seems to be moving away from that principle. Of course, the Court may continue to insist on nonsectarianism outside the legislative prayer context; future cases will tell. But the Court’s willingness to allow sectarian religious expression in this case is a development worth watching.

Second, the Court’s opinion gives a great deal of deference to local governments. The town’s employees could have taken additional steps to make sure the clergy they invited were not so overwhelmingly Christian. Instead of relying on a community guide listing places of worship within the town–all of which were Christian–they could have expanded their search to the surrounding area. For example, many Jewish residents of Greece worshiped at synagogues across the town line in Rochester. If the employees had done a little more research, they would have known this, and they could easily have asked the rabbis from those synagogues to participate.

The Court was not willing to require any more from the town, however. In fact, in his concurrence, Justice Alito argued that it wouldn’t be fair to require more, since “the informal, imprecise way in which the town lined up guest chaplains is typical of the way in which things are done in small and medium-sized units of local government.” To require more could dissuade “local officials, puzzled by our often puzzling Establishment Clause jurisprudence and terrified of the legal fees that may result from a lawsuit claiming a constitutional violation,” from allowing legislative prayer at all.

The deference the Court showed the Town of Greece is significant, I believe. Steve Smith has written about the desirability of local solutions in Establishment Clause cases. The Court seems to be endorsing localism in this case. Towns are not required to have legislative prayer, of course. But those many towns that do wish to start their meetings with prayer–even exclusively Christian prayer–will now be able to do so, as long as they show that they made reasonable efforts to be inclusive. And if the only places of worship in town are Christian, then it’s reasonable for the town to have only Christian prayers. That’s the upshot of the Court’s decision.

In my law and religion seminar, I tell students that most of our fights about the Establishment Clause boil down to this: What can a religious minority reasonably require of the majority? Or, put differently, how far must the majority go to accommodate the sensibilities of the minority? Here, the Court seems to be saying, if a town is overwhelmingly Christian, non-Christians cannot legitimately expect that legislative prayers will be anything but overwhelmingly Christian. To insist on something else would be unreasonable. What about those few citizens who do object to the repeated recitation of Christian prayer at town meetings, who feel genuinely offended? What word does the Court have for them? Well, there are other towns.

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.”

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.

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