Town of Greece v. Galloway and Institutional Withdrawal

Every so often, the Supreme Court seems to be doing something other than clarifying the principles of constitutional law to guide the resolution of future cases.  Instead, it may be doing little more than sketching the terms for institutional withdrawal from a field of social action.

Yesterday’s decision in Town of Greece v. Galloway, which allowed a town supervisor to pick someone to solemnize town meetings even though it is highly likely such statements will turn out to be sectarian, bears all the hallmarks of a hasty retreat.  First, there is the monumental move of describing the chosen prayer-givers as private speakers, subduing Establishment Clause objections by resorting to free speech ideas (I will note that Free Exercise language is sprinkled liberally throughout the opinion, but no one seriously claimed that one must have a right to speak at government functions in order to worship in a meaningful way).  Recall that when public school officials tried the private speech argument in the school prayer (Lee v. Weisman) and football prayer (Santa Fe Indep. Sch. Dist. v. Doe) cases, the Justices rejected it out of hand.  Now, the Court likes the argument in a prayer case. The main difference cited is that those cases involved children and this one involves adults, but fear of coercing children should hardly extinguish the objections of adults, who might very well need to be present for the people’s business.  We are quickly informed that adults in the religious minority must buck up (more on this in a moment).

Second, as some commentators have observed, the ruling gives very little by way of guidance to judges who must determine when the Establishment Clause has been transgressed (and when the Speech Clause has not).  It appears that the Court may be giving up on the idea that sectarian expressions must be guarded against, once you have an honest to goodness public forum. Even if a citizen isn’t forced to attend town meetings, does she have a right to be free from offensive prayer at court proceedings and other government-sponsored events?  Is the Court really going to start drawing fine lines between government settings (apart from schools), identifying ones that present an inherent risk of improper proselytizing?  Doubtful.

Third, if the answers to these questions are: probably not, then the Court may simply be giving the appearance of leaving serious questions open for litigation, but in fact be effectively insulating a certain kind of religious politics, i.e., over prayer, from judicial review.  Once the state creates a public forum, we are told it can’t censor the content of the expression that follows to ensure it is “generic or nonsectarian.”  Doing so would interfere with the invisible hand that governs the marketplace of ideas and often now trumps Establishment Clause concerns.

Since at least the Warren Court, legal liberals have believed that an alert judiciary policing the religious sphere helps keep the peace.  But conservatives learned a very different lesson over the years.  After decades of organizing against the mythical wall of separation between church and state, conservatives–and the jurists that represent their views–have arrived at the conviction that judicial involvement has marginalized people of faith and silenced them, while rendering the courts politically vulnerable.  The resolution in Town of Greece is best understood in this light of backlash politics and institutional withdrawal.

Prayer has been the single most visible issue, both real and symbolic, contributing to conservative counter-mobilization.  So if Engele v. Vitale represented the high point of judicial involvement in religious matters, and if Lee v. Weisman and Santa Fe Indep. Sch. Dist. v. Doe were holding pattern cases, Town of Greece finally absorbs and unleashes those political lessons with a vengeance. It does so by returning prayer issues back to the rough and tumble of ordinary politics. Outside of the school context, it seems that much is permissible by way of “ceremonial prayer” (but why leave it at “ceremonial” prayer?).  Justice Kennedy’s opinion tells us as much.  First, religious minorities who do not hear their religious leaders at government events are told to toughen up, for “[a]dults often encounter speech they find disagreeable.”  Once again, the resort to free speech rhetoric is undeniable: religious objectors are treated like hecklers who should not be given a veto over the religious majority.  An objector’s remedy is one of self-help, just like anyone who is confronted by objectionable speech on the streets: to remain and try to ignore the offending religious speech or leave the gathering.  Justice Kennedy suggests, in a hopeful way, that no one will think any less of you either way.  If you exit, your “absence will not stand out as disrespectful or even noteworthy.” Staying won’t be “interpreted as an agreement with the words or ideas expressed.”

Second, citizens are explicitly warned not to run to court and make too much out of single invocations that go too far.  This is more language seeking to insulate prayer from further litigation.  A judicial remedy might be available only if a litigant demonstrates “a pattern and practice” of ceremonial prayer being used to “coerce or intimidate others.” It might be a problem if government officials directed audience members to pray, or “singled out dissenters for opprobrium,” or allocated “benefits and burdens” on the basis of participation in prayer. In “the general course,” however, mere exposure to unwanted or insulting religious ideas would not make out an Establishment Clause violation.

Will blurring the rules in an attempt to get the courts out of prayer disputes work to reduce religious strife?  I’m not as confident as Justice Kennedy that reduced judicial attention to government-organized prayer will diminish antagonistic politics. At best, it may displace conflict from the courts to local communities and disperse conflict regionally.  In fact, it may very well intensify the activity of legal liberals.  For one thing, we will now see redoubled efforts by religious minorities and nonbelievers to test whether these “public forums” springing up truly are open to all faiths (or those with no faith at all), or are actually shams.  In other words, will the Muslim, the atheist, the devil worshipper, the Odinist, and the Wiccan really be permitted to solemnize town meetings?  If they are not, will their exclusion be done on a content-neutral basis?  The people of Greece really did bend over backwards, apparently never once turning someone down who wanted to solemnize a town meeting.  What happens when citizens decide that only a Christian solemnization is appropriate for the occasion?  Under limited public forum rules, the government is accorded some leeway to determine the purpose of the forum; on the other hand, viewpoint discrimination presumably can still be a problem.

Second, we will surely experience a resurgence of prayers at legal proceedings and other government-sponsored events.  Those situations, too, will continue to be tested in the courts. The re-writing of doctrinal rules (what happened to the endorsement test?) incentivizes further government-religion partnerships through creative use of the public forum doctrine.  A public forum need no longer be a physical space in the traditional sense, but could be a metaphorical pot of money or now, a moment in the agenda when one might speak or pray.  Each time this strategy is judicially approved, it removes the state from constitutional responsibility over the religious activity that subsequently occurs.  At some point, this strategy of recharacterizing Establishment Clause issues as simple Speech issues must reach a logical limit.  Just not yet.

Will clashes over prayer become more intense or less so?  Will there be fewer religion cases in the courts?  Time will tell.  But one thing is apparent: the Supreme Court no longer wishes to be blamed for taking God out of the public square.

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