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June 26, 2013

In the Media: Faculty Members on Prop. 8 and DOMA (Updated)


Photo: Reuters

The national, regional, and local media are turning to UC Davis law faculty for expert analysis and commentary on today's U.S. Supreme Court decisions on the Proposition 8 and Defense of Marriage Act (DOMA) same-sex marriage cases.

Here is a sampling of media citations. This list will be updated as more stories hit the web.

 

Dean Kevin R. Johnson

Southern California Public Radio

DOMA ruling a victory for bi-national couples, but legal questions remain

http://www.scpr.org/blogs/multiamerican/2013/06/26/14103/doma-ruling-a-victory-for-bi-national-couples-but/

 

Associate Dean and Professor of Law Vikram Amar

CNBC-TV

Supreme Court Strikes Down DOMA; Paves Way for California Gay Marriage

http://www.cnbc.com/id/100845753 (with video)

 

Justia’s Verdict

Analysis: If the Supreme Court Decides the Proposition 8 Sponsors Lack Standing, What Will Happen to Same-Sex Marriage in California? This April 26 essay is being cited by numerous news agencies and blogs today.

http://verdict.justia.com/2013/04/26/if-the-supreme-court-decides-the-proposition-8-sponsors-lack-standing

 

KQED Forum

Prop 8 Ruling Paves Way for Same-Sex Marriage in Calif.; DOMA Ruling Gives Gay Couples Federal Benefits

http://blogs.kqed.org/newsfix/2013/06/25/proposition-8-supreme-court/ (with audio)

 

The Sacramento Bee

Jerry Brown tells California counties to issue gay marriage licenses

http://blogs.sacbee.com/capitolalertlatest/2013/06/jerry-brown-tells-california-counties-to-issue-gay-marriage-licenses.html

 

The Los Angeles Times -- Update added June 27

Same Sex Weddings to Resume in California Soon, Officials Say

http://www.latimes.com/news/local/la-me-gay-marriage-california-20130627,0,3679293.story

 

Capital Public Radio’s “Insight” -- Update added June 27

Prop. 8 and DOMA Follow-Up

http://www.capradio.org/news/insight/2013/06/13/insight-062713/ (with audio)

 

San Jose Mercury News -- Update added June 27

Proposition 8 Appears Doomed in California after Supreme Court Ruling

http://www.mercurynews.com/samesexmarriage/ci_23547428/gay-marriage-u-s-supreme-court-proposition-8

 

KTXL Fox40 News -- Update added June 27

Making Sense of What's Next after Ruling on Prop. 8

http://fox40.com/2013/06/26/making-sense-of-whats-next-after-ruling-on-prop-8/ (with video)

 

The Guardian UK -- Update added June 27

U.S. Moves to End DOMA Discrimination after Gay Rights Breakthrough

http://www.guardian.co.uk/world/2013/jun/27/us-discrimination-gay-rights-doma

 

The New York Times -- Update added June 28

Roberts Pulls the Supreme Court to the Right Step by Step

www.nytimes.com/2013/06/28/us/politics/roberts-plays-a-long-game.html

 

The Los Angeles Times -- Update added June 28

Prop. 8 Ruling Raises Fears about Effects on Other Initiatives

http://www.latimes.com/news/local/la-me-gay-marriage-initiatives-20130628,0,3117108.story

 

Professor of Law Courtney G. Joslin

Bloomberg News and Bloomberg Businessweek

Supreme Court Ruling Narrows Gay Couples’ Benefit Gap

http://www.bloomberg.com/news/2013-06-26/supreme-court-ruling-narrows-gay-couples-benefit-gap.html

http://www.businessweek.com/news/2013-06-26/supreme-court-ruling-narrows-benefit-gap-for-gay-couples-taxes

 

Capital Public Radio’s “Insight”

SCOTUS Rulings on DOMA & Prop. 8

http://www.capradio.org/news/insight/2013/06/26/insight-062613/ (with audio)

 

Equality Radio

Live Coverage: SCOTUS decisions on Prop 8 and DOMA

http://equalityradio.net/scotus-decisions/#.UctNaJzgf6A (with audio)

 

KTXL Fox40 Morning News

Reaction to the Prop 8 Ruling

http://fox40.com/2013/06/26/reaction-to-the-prop-8-ruling/ (with video)

 

Orange County Register -- Update added June 27

Why DOMA Went Down

Orange County Register DOMA Reactions.pdf (622.87 kb)

 

St. Louis Post Dispatch -- Update added June 27

Many Applaud Gay Marriage Rulings, thought Direct Effect in Missouri and Illinois Will Be Limited

http://www.stltoday.com/news/local/metro/bells-ring-downtown-as-local-community-responds-to-supreme-court/article_7630497d-4f75-5006-9720-5f6946c6b5b2.html

June 25, 2013

Affirmative Action: The Door's Still Open

On Monday, the Supreme Court opted against a definitive ruling on the constitutionality of the University of Texas' race-based college admissions program and instead sent the case back to the U.S. 5th Circuit Court of Appeals for a closer look at the university's policy. Many will view the decision as a punt. But as football fans know, punts are often important plays in a game. And proponents of race-based affirmative action have every reason to see this play as working in their favor.

Affirmative action has tended to divide the court in consistent ways. Justices Antonin Scalia and Clarence Thomas (and, based on more general things they have said, likely also Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., though these two did not tip their hands Monday) think that race consciousness is not a constitutionally permissible way to assemble a minimally diverse student body.

Other justices, especially Ruth Bader Ginsburg but also probably Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, think universities should be allowed significant latitude to consider race to promote diversity, provided the schools are acting in ways that assist underrepresented racial minorities.

Justice Anthony M. Kennedy, who wrote Monday's ruling and whose views have held sway in recent affirmative action cases, has staked out an in-between space defined by a fundamental distrust of — but not an outright prohibition on — schools' use of race.

So why should universities feel comfortable about being confined to Kennedy's middle-ground territory? Because Kennedy could have moved into the ranks of the more conservative justices and adopted a rigid prohibition, but chose not to.

Writing for the majority, Kennedy expressed his long-standing view that "strict scrutiny" must be applied to any university's use of race. (Indeed, he chided the 5th Circuit precisely because it deferred to the university's judgment and failed to undertake an independent inquiry into whether the school had adequate justification for using race.)

And he added that a reviewing court "must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." By this, Kennedy was referring to the University of Texas' race-neutral Top 10 Percentage Plan (wherein the top 10% of each Texas high school is guaranteed admission regardless of standardized test scores or other metrics) that was already generating some diversity at the university. But, importantly, he did not require (or even come close to requiring) that all colleges try such percentage plans before adopting race-based programs.

Although Kennedy's "almost never" approach might seem analytically similar to the "colorblind" approach of more conservative justices, what counts most in the real world of affirmative action is the court's bottom-line answer to the question of whether the use of race is categorically forbidden. In this setting, a door for affirmative action that is slightly ajar is closer to being wide open than it is to being slammed shut; if the door is cracked at all, universities can maintain race-based programs. As the line from "The Princess Bride" goes, "There's a big difference between mostly dead and all dead."

Kennedy's stance has been that, although race consciousness is very hard to justify, it is not completely improper, and nothing in Monday's decision departs from that position. What this means practically is that most universities are still not prohibited from considering race as part of their admissions criteria. There is an exception, of course, in states that have passed laws prohibiting race as a criterion, such as California's Proposition 209.

In most states (and at private schools) though, we're likely to see universities continue to do what they've been doing. They will simply be careful to justify doing so in the precise terms Kennedy seems to want.

Of course, whether schools are truly complying with the letter or even the spirit of Kennedy's vision is another matter. Any justice saying "rarely but not never" faces the difficulty of crafting language that articulates precisely what is allowed and what is forbidden.

Kennedy tries by saying race consciousness must be "necessary" and "narrowly tailored" to the goal of diversity, but these words are inevitably susceptible to broader and narrower interpretations, especially because Kennedy makes clear that the proper understanding of these terms depends on context. Indeed, the fuzziness of this language enabled a wide range of justices (including Alito, Breyer and Sotomayor) to join Kennedy's opinion, even if they don't all agree on precisely what the standard means in every application.

As a result, universities — even those acting in good faith — can't know precisely where the line is, and thus can operate somewhat aggressively, adopting a reading of Kennedy's yardstick that, while debatable, permits them to continue to consider race in admissions decisions. And any challengers will have to take on the specific policy of each school, one at a time. This will remain true even if the 5th Circuit, on remand, strikes down the University of Texas' plan.

For good or ill, there is often a gap between what the law requires in the abstract and what the law means on the ground. And this gap may be wider the less absolute the governing legal principle is. That is one reason why some judicial umpires, most notably Scalia, prefer bright-line rules to case-by-case tests.

Cross-posted from The Los Angeles Times.

June 21, 2013

A Preview of Next Week’s Supreme Court Ruling in Hollingsworth v. Perry: What to Expect and What to Look For

Cross posted from Justia's Verdict.

As millions of people eagerly await next week's Supreme Court action in Hollingsworth v. Perry, the case from California involving Proposition 8 (the voter-enacted ban on same-sex marriages in the Golden State), I offer below a few thoughts on what to expect and what to look for in the Court's ruling.

We Should Not Expect a Definitive Resolution of the Federal Constitutional Question of Same-Sex Marriage

First, I don't think we will get a big resolution of the meta-question whether the federal Constitution's Fourteenth Amendment requires recognition of same-sex marriage.  Why?  Because a ruling in either direction is fraught with peril.  The Court (or at least its middle, controlling wing) is probably not ready to proclaim a national right when roughly three-quarters (38) of the States currently do not recognize same-sex marriages.  At the time of Loving v. Virginia, the 1967 case striking down Virginia's ban on interracial marriage, only 16 (or less than one-third) of the States prohibited marriage across races.  And in Lawrence v. Texas, the case from a decade ago in which a divided Court invalidated Texas' attempt to criminally punish someone for engaging in homosexual conduct, the Court noted that only a handful of states at that time actively prosecuted persons for similar conduct.  Even the momentous equality ruling Brown v. Board of Education did not call into question the laws of more than 20 or so states that mandated educational segregation in 1954.  As bold as the Supreme Court has been in protecting liberty and equality rights, past practice does not suggest a likely proclamation of a national right here, when things are so fluid in the States.

But that fluidity also cuts against a ruling flatly rejecting a national right to same-sex marriage.  Because things are changing so quickly (witness the three states that have decided to legalize same-sex marriage just in the few months since the Supreme Court heard oral arguments in the Proposition 8 dispute), the number of states embracing gay marriage could increase over the next decade from 12 to something in the range of 30 or more.  So the Court (or, again, its middle wing) may not want to deny a same-sex marriage right claim altogether next week, because to do so would make it harder (on account of stare decisis) for the Court to recognize a national right in the coming years, should a majority of Justices think doing so is the correct constitutional thing.

In short, my sense has always been that the Court had no desire to wade into the same-sex marriage thicket while the issue is percolating so actively in legislatures and state courts, and that the only reason the Court granted review in the Defense of Marriage Act (DOMA) and Proposition 8 cases this year is that lower federal courts invalidated these prominent enactments.  (That is to say, had lower courts upheld DOMA and Proposition 8, I think the Justices would have been content to deny review.)  Having been essentially forced to take cases before the Justices really wanted to weigh in at all, the Court will, I think, try to resolve less, rather than more.  In the DOMA case, there seemed at oral argument to be some support among the Justices to invalidate the challenged provision of DOMA without imposing same-sex marriage on unwilling states (by relying to some extent on federalism rather than individual rights), and I think in the Proposition 8 case the Court will also look to act as minimally as reasonably possible.

Narrower Options in the Proposition 8 Case

So what are the remaining options for the Court concerning Proposition 8, and which ones are the most likely?  One is that the Court could reject the plaintiffs' assertion of a national right to gay marriage, but make clear that things could change as the nation evolves on this question.  This is a possible route, but not a very attractive one for the middle/left of the Court, because the takeaway headline/holding would still be the rejection of the right.  And this would-if the Court were then to want to reverse course and accept the right in the near-term future-require the Court to offer a somewhat contentious explanation of how the meaning of the Constitutional document can change so rapidly.  Easier-for those Justices who think they may embrace the claim down the road-to avoid the broad question altogether for now.

A second option would be to strike down Proposition 8, but do so on the narrow grounds used by the Ninth Circuit and urged by the Solicitor General, grounds that would not invalidate the laws of all 37 other non-same-sex-marriage states, but rather only some small number of them.   The problem is that the Ninth Circuit's reasoning-which included the idea that California's ban is hard to justify as rational because the state has gone so far down the road to equalizing the rights of gay and straight couples-doesn't really work.  Many of the Justices at oral argument-even those generally thought to be more liberal or moderate-made the point that telling a State that it can't be rational in moving incrementally simply because it has moved at all is odd, at the very least.  The argument is a tough sell, even though the Ninth Circuit bought it.

A third choice would be to simply dismiss the Proposition 8 case from the Court's docket altogether.  Such a dismissal (known as a "DIG", which is short for "Dismiss as Improvidently Granted") is certainly possible, and would enable the Court to say nothing at all about Proposition 8.  It would be as if the Court had declined to grant review in the first place.  But, as I've explained before, a DIG is hard to square with the decision of four Justices to grant certiorari in the first place; nothing in the case has really changed since the original grant.  Moreover, a DIG would leave the Ninth Circuit ruling-and its reasoning-intact as the law of the Western United States, something a large number of Justices may be uncomfortable about.  Also, if the Court were going to DIG the case, it might have announced that decision before now.  So I place the odds of a DIG at something below 50%.

The Standing Route

That brings us to an approach I have been arguing for years is the best way to go-a ruling that Proposition 8's sponsors lack standing in federal court to defend the initiative, even though the elected officials normally counted on to defend (the Attorney General and the Governor) have declined to do so.  I think this is the most likely of the various possible outcomes (perhaps more likely than all the others combined) because it has many virtues.

Such a ruling would allow the Court to avoid speaking to the merits of the same-sex marriage dispute, but would also erase the Ninth Circuit's opinion.  A ruling on standing would-in the end-most likely result in Proposition 8's demise.  But, importantly, under this scenario, same-sex marriage would likely come about in California not from unelected federal judges' contested views of the Constitution, but rather from the actions of elected (and accountable) officials in California (the Attorney General and Governor) whose failure to defend the measure will ultimately bring it down.

A standing ruling would more than just prudent; as I have argued, I think it would be justified by the principles of standing law itself, and would resolve an important and open question within the doctrine of standing.  So a ruling that the Proposition 8 proponents lack standing should be seen not an unprincipled dodge, but rather as a legally justified and eminently sensible course of action.

Things to Look for if the Court Rejects the Proponents' Standing

If the Court does pursue this avenue, here are the two things to look for/focus on:

First, as for same-sex marriage in California, we should examine the ruling carefully to see what guidance the Court gives to the lower courts on remand.  Everyone agrees that the Ninth Circuit opinion would be vacated (undone), and that the two named-plaintiff couples who sued should get their licenses.  But how and why they get their licenses will be important, and will affect whether other same-sex couples in the State should get licenses right away too, or instead will have to wait for future legal or political developments.  Key to this question will be what, if anything, the Court says about trial Judge Vaughn Walker's judgment striking down Proposition 8 that he issued after the high-profile trial he oversaw.  We are not talking here just about the scope of Judge Walker's injunctive remedy against State officials, but whether the judgment in favor of the plaintiffs itself has to be erased and re-sought (in a different form) by the plaintiffs.  I have argued that Judge Walker's judgment probably should be vacated (and language near the end of the Supreme Court's opinion in Karcher v. May seems to support my argument), but we need to see whether any, or a majority, of the Justices speak directly to this issue and what they say.  The issue will undoubtedly be important for the timing of same-sex marriage in California, but it also has ramifications for standing doctrine more generally.  The question of what, precisely, follows from a finding that the only defendant who is actively defending lacks standing is an important one.

Second, we should examine what, if anything, the Court says about how initiatives can be defended when elected officials don't defend them, so that the initiative device itself is not diminished.  The best argument for initiative-proponent standing is that elected officials shouldn't be able to kill the very initiative device that is designed to be a check on their power.  There are ways for the Court to ensure that initiatives can be defended even if the Proposition 8 proponents lack standing-e.g., voters can deputize initiative sponsors explicitly and provide a framework for their authority to represent the people  (in a way that Proposition 8 voters did not)-but the question is whether the Court will see and discuss them.

 

June 20, 2013

UC Davis Clinic Highlighted in California Supreme Court Historical Society Newsletter

By California Supreme Court Clinic Director Aimee Feinberg. Cross-posted from the California Supreme Court Historical Society Newsletter.

The California Supreme Court touches the lives of every Californian. The Court reviews the work of about 2,000 judicial officers, the largest law-trained judiciary in the world, and issues rulings governing countless day-to-day activities of the state’s residents. According to the National Center for State Courts, the California Supreme Court processed a staggering 9,562 matters in 2010, thousands of cases more than the next busiest state high court.

The Court’s reach extends beyond the state’s borders. In a comprehensive study published in 2007, Jake Dear and Edward Jessen concluded that the California Supreme Court is the most followed state high court in the United States. Thus, when it comes to tort law, insurance law, criminal law, and others, the saying rings true: as California goes, so goes the nation.

It is fitting, then, that one of the state’s newest legal clinics should train its attention on the state Supreme Court. In the fall of 2012, UC Davis School of Law launched the first and only law school clinic in the state to focus exclusively on the California Supreme Court. Inspired by a 2010 speech by former State Bar President Jeff Bleich and modeled to a large extent on Stanford’s first-in-the-nation U.S. Supreme Court clinic, UC Davis’s California Supreme Court Clinic provides pro bono representation to parties and amici in both civil and criminal cases pending before the state’s High Court. The Clinic’s six students, each of whom is selected to participate by application, become immersed in California Supreme Court practice and procedure. During the semester-long program, Clinic participants study the Court’s rules, learn principles of effective appellate advocacy, hear from seasoned practitioners, and, under faculty supervision, research and draft briefs to be filed in cases pending before the Court.

Like many appellate advocacy programs, the Clinic aims to teach students critical brief-writing skills. But focusing exclusively on the California Supreme Court offers students other important learning opportunities. Because the Court grapples with some of the most complex and consequential issues facing the state, students in the Clinic learn to research and analyze legal questions at an exceptionally deep level. They are called on to leave no stone unturned in their case research, to comb through legislative history, to examine agency regulations, to canvass laws in other jurisdictions, and to marshal policy arguments. By concentrating on the state’s highest court, moreover, the Clinic offers students the chance to see how a legal issue travels through the state system from start to finish. Likewise, because the Court (for the most part) has discretion to decide what cases it will hear, Clinic enrollees learn about the petition-for-review process and the characteristics of cases that may find their way onto the docket of a court of last resort. At the same time, focusing on a court with a docket as diverse as that of the California Supreme Court exposes students to an unusually broad array of legal issues. And by observing the Court’s oral argument sessions, students see some of the nation’s most respected jurists question advocates and explore the intricacies of complicated legal questions.

Litigating cases before the California Supreme Court also provides students with an important opportunity to serve the public interest. Although the federal courts undoubtedly decide significant issues, the California state courts provide the forum for many more disputes to be resolved: in 2012, litigants filed 372,563 matters in federal district court; in fiscal year 2010–2011, filings in California superior courts surpassed 9.4 million. At the same time, the state system often adjudicates cases

in the areas of law most likely to affect people’s everyday lives — how contracts are enforced, the accused are tried, businesses are regulated, marriages are dissolved, children are reared, and property is owned. By working on cases pending before the state’s highest court, Clinic enrollees have the chance to present their clients’ arguments knowing that a case’s outcome will almost certainly impact the lives of many people.

The Court’s special place in the state’s judicial system offers special opportunities for law students. For the participants in the Clinic, it is an honor to litigate before the Court.

 

June 7, 2013

Derrick Bell and the Emergence of LatCrit Theory

Earlier this year, I contributed a piece to the Seattle Unviersity Law Review's symposium in memory of Professor Derrick Bell.

Here is the abstract for the Bell Symposium: "Derrick Bell — law teacher, mentor, scholar, activist, author, loving husband and father — larger than the sum of his many parts. The articles in this symposium are fitting tributes to his legacy and valuable contributions to Derrick’s memory."

My piece is titled "Derrick Bell and the Emergence of LatCrit Theory." An excerpt:

As no doubt many of the contributions to this memorial issue attest, Professor Derrick Bell no less than blazed the trail for generations of minority scholars to write about race and civil rights in original, dynamic, and nothing less than cutting edge ways. As we all know, he was a founder of Critical Race Theory, and authored path-breaking race and civil rights scholarship.

As is also well known, Professor Bell’s casebook, Race, Racism, and American Law, published by Little Brown & Company in 1973, is the gold standard in civil rights scholarship. When a Harvard Law School professor publishes a casebook with a major legal publisher, it lends legitimacy to a field—in this case, one that ultimately evolved into Critical Race Theory. By lending important intellectual credibility to critical race scholarship, Race, Racism, and American Law made it possible for future scholars writing civil rights scholarship to be accepted as legitimate, and, among other things, be hired and tenured at law schools across the United States. These are monumental achievements that deserve acclaim and recognition.

In the limited space that I have, my hope is to outline how Professor Bell helped spur an intellectual movement with which he has not generally been associated; namely, he helped create the intellectual space for critical Latina/o (LatCrit) theory. Professor Bell also became a role model for intellectual activism in that political movement.

My linking of Derrick Bell with the emergence of LatCrit theory at first glance may seem anomalous. He generally is not identified with LatCrit scholarship. Indeed, some LatCrit scholarship directly responded to what the writers viewed as limits to Professor Bell’s scholarly analysis.

Nonetheless, Professor Bell’s scholar ship helped fuel the creation of LatCrit theory’s exploration into peculiarly Latina/o civil rights concerns in a variety of ways. Moreover, his actions, in important respects, legitimized in legal academia the LatCrit commitment to activism.

You can read the piece -- and all of the wonderful contributions to the symposium -- at this link: http://seattleuniversitylawreview.com/files/2013/05/BellSymposiumCombined.pdf.

June 7, 2013

What Should the Supreme Court do With Town Board Prayers in Galloway v. Town of Greece? A Liberty-Based Analysis That Bolsters the Second Circuit’s Equality-Based Ruling

By Professors Vikram Amar and Alan Brownstein for Justia's Verdict.

Last week the U.S. Supreme Court granted review in an important case involving the First Amendment’s Establishment Clause, Galloway v. Town of GreeceGalloway involves a decade-plus- long practice in the upstate New York Town of Greece of starting Town Board meetings with a short prayer.  Before 1999, the Town (which has slightly fewer than 100,000 residents) began Board meetings with a moment of silence.  But since then, it has been inviting local clergy to offer an opening prayer after the Pledge of Allegiance has been recited. Prayer-givers deliver their prayer over the Board’s public address system, and many have asked members of the audience to bow their heads, stand, or join in the prayer during its recitation.  The Town asserts that anyone—followers of any religion, agnostics, and atheists alike—can request to offer an invocation, and that it has never turned down any request.  But in practice, Christian clergy have given nearly all the prayers since 1999, and have been invited to do so by the Town, which often calls them “chaplain[s] of the month.”

As fellow Verdict columnist Marci Hamilton pointed out last week in her analysis of this case, the U.S. Court of Appeals for the Second Circuit (with esteemed Judge Guido Calabresi writing) invalidated the Town’s practice, finding that the prayers, in context, had to be understood as a public endorsement of Christianity, which violated the First Amendment’s ban on laws respecting an establishment of religion.  We agree with much of Judge Calabresi’s reasoning, but in the space below we offer additional reasons—ones we feel the Second Circuit did not adequately explore—to be skeptical about what the Town has been doing.

The Town of Greece’s Practice Does Implicate Religious Equality Values

Disputes about the recitation of prayers before town board or city council meetings implicate many values underlying the Establishment Clause. The Second Circuit’s opinion, which focused on the so-called endorsement test, spoke primarily in terms of religious equality.  And there are powerful equality-based grounds for challenging the town of Greece’s government-sponsored prayers. For these constitutional purposes, equality means not only equality in material benefits but also equality of status and respect. This has been clear since the Court declared in Brown v. Board of Education that physically comparable but separate public schools that are segregated by race violated the equal protection clause because of the message of inferior status they communicated to African-American children. When government bodies select leaders of majoritarian religions to lead sectarian prayers to open local governmental proceedings, while ignoring the beliefs of other citizens, the message of lack of worth and disrespect for minority religions and the non-religious would be hard to avoid.

To be sure, there is nothing intrinsically disrespectful about being asked to stand while prayers of a different faith than our own are being offered. Most of us have probably been asked to do so when attending a wedding, bar mitzvah or other religious event in the house of worship of neighbors and friends. In those situations, however, we are guests in the sanctuary of a different faith community.  As outsiders, we do not expect our different religious identities to be recognized. There is no pretense that the rituals being observed reflect our own religious commitments. But citizens of a town or city are not guests and outsiders at the public meetings of their government. They belong to the political community and, quite reasonably, resent being treated as strangers who are not being shown the same respect afforded to its favored members.

And the Town has been essentially discriminating against minority religious voices. By focusing on majoritarian sects—the Town drew some prayer leaders from a list of congregations printed in the Chamber of Commerce’s directory—the Town effectively excluded religious adherents who live in the Town but who lack the numbers to establish a physical congregation within the community.  Oftentimes, as in the area surrounding UC Davis, where we both teach law, religious practitioners may have an insufficient number of members to establish a congregation in their own town, and for that reason they worship in a congregation in a neighboring town.  But if each town used only a directory of congregations located within that town as the source of clergy to be invited to lead prayers at Board meetings, many religions would be left out.

Equality Is Not the Only Establishment Clause Value at Stake Here, and Town Councils Differ From State Legislatures

As powerful as the equality concerns in this case are, they should not cause us to overlook the important religious liberty concerns that are also raised in this dispute. Plaintiffs argued that the prayers at Board meetings were coercive, but the Second Circuit opinion, construing these arguments to be focused only on children, quickly rejected these claims in a footnote. Plaintiffs were adults, the court reasoned, and the prayers at the Town Board meeting here were no more coercive than the prayers offered at sessions of the Nebraska state legislature that the U.S. Supreme Court upheld against an Establishment Clause challenge in Marsh v. Chambers in 1983. We think the court was far too quick to dismiss these religious liberty concerns on the authority of the Marsh decision.

There are critical distinctions between city councils and state legislatures that produce very different kinds of audiences who attend the meetings of these different government bodies. Most of what a state legislature does involves the formulation and enactment of general legislation that impacts large groups and constituencies. There may be some narrow bills that address limited issues, but the majority of the state legislature’s work relates to laws of significant breadth and scope. By contrast, the work of a city council, in most of the towns and cities of the United States, regularly deals with decisions affecting small groups and individuals. Land-use decisions impact individual neighbors and neighborhoods. Funding decisions may burden particular small constituencies. Often town councils and boards act as administrative tribunals in a quasi- adjudicatory capacity, hearing personnel grievances or land use appeals. Thus, these local government meetings are much more likely to be focused on particular individuals than are the general laws that state legislatures consider at their sessions.

Moreover, and related to these differences, citizens who watch the deliberations of the state legislature from the gallery are almost always passive observers of the government’s functions. They have no role to play in the legislative process. Citizens who attend city council meetings do so for very different reasons. Usually they are not passive witnesses attending the sessions to be better informed about government operations. They attend council meetings to participate in government by speaking to the Council during public comment periods. They want and expect to be seen and heard by the Council. Their goal is to influence decisionmakers, not to simply observe or monitor them. For that reason, the ability to address the Council in person is an important right of political participation.

Finally, outside of major metropolitan areas, there are stark difference between the size and format of state legislative chambers and sessions, and those of city councils. State legislators rarely know who is sitting in their legislative galleries. The size of the chambers and the number of legislators and visitors preclude any such knowledge or sense of familiarity.  Not so, in the small meeting rooms of a city council, where the physical proximity between the Council and the audience and the limited number of participants make it far easier for Council members to be aware of their audience.

Because of these differences, the decision in Marsh tells us very little about the coercive nature of government-sponsored prayer at city council meetings. In the setting of a city council meeting, citizens who wish to address the council are coerced when they are asked to stand or otherwise affirm the prayer that is being offered in their name. A failure to comply would risk alienating the very political decisionmakers whom they hope to influence.

The Town of Greece provides a good illustration.  Citizens there who feel excluded and burdened by the Board meeting’s prayers have no good alternatives. They can try to arrive at the council session after the pledge and prayer have been completed—but they may stand out in a small council meeting room for doing so. It would be even more awkward to stay and recite the pledge and affirm their loyalty to our country, leave for the prayer, and then return after the prayer is over. Or they can sacrifice their religious liberty by agreeing to have someone appointed by the government pray in their name. Visitors sitting in the gallery at the state legislature experience no such vulnerability or pressure.

Why the School Analogy Doesn’t Undercut Galloway’s Liberty Claims

Some commentators and jurists point to the school setting and argue that it suggests that coercion-based arguments depend upon the malleability of the listener.  They read the school cases for the proposition that state-sponsored prayer is unconstitutional in the context of public schools only because children, on account of their age and maturity, are uniquely susceptible to indoctrination and the pressure to conform.  By contrast, adults attending city council meetings, it is suggested, should be capable of withstanding such compulsions. This argument is unpersuasive. The major problem with religious coercion is not that it may actually change people’s religious beliefs and practices. It is that when religious individuals defy the state’s coercive efforts, they suffer burdens and penalties for doing so. Religious coercion is as unconstitutional when it fails as it is when it succeeds.

Prayer in the public schools is distinctively problematic, but not just because it is directed at children. It is particularly dangerous because teachers and administrators have so much discretionary power over the students in their charge. Both students and their parents know that it is treacherous to alienate school personnel because retaliation is so easy to mete out and hard to prove.

Citizens attending city council meetings for the purpose of influencing the council’s decision confront a similar burden that does not dissipate with age or maturity. The decisions of a city council often involve substantial political discretion in weighing the competing concerns of relatively small constituencies. Citizens who refuse to join in prayers offered by clergy invited by the council risk overtly or subconsciously retaliatory rulings.

A Final, Particular Way in Which the Town of Greece’s Practice Offends Liberty

The Town of Greece’s approach to public prayer at issue in this case involves a particularly egregious affront to religious liberty. There are at least two kinds of prayers that an organization may use to begin a session or meeting.  In one kind of prayer, the speaker prays in his or her own name for G-d’s blessing to be given for the meeting and its participants. There is a religious liberty issue implicated here, in that individuals may feel that they should not be required to be present while a prayer is expressed. The weight of that burden may be somewhat mitigated, however, by the fact that many people do not experience the fact that someone else is offering a prayer for their well-being as a burden on their liberty—even if the person who is doing the praying is of a different faith.

But a far greater affront to religious liberty occurs when the second kind of prayer is undertaken.  In this kind of prayer, the speaker claims to be offering a collective prayer expressing the beliefs of the audience, a collectivity to which audience members are asked to acquiesce by standing or bowing their heads. The decision about when and how to speak to G-d, and the words one chooses in that expression, belong to the individual. It is an extraordinary intrusion into the religious liberty of the individual for the state to usurp those decisions. The state cannot tell people that as a condition to attending and commenting during a city council meeting, they have to delegate to the state the power to appoint someone to pray to G-d in their name.

This basic commitment to personal religious autonomy is the foundation of the American understanding of religious liberty. When colonial proponents of religious liberty argued that religious freedom was an inalienable right, they were speaking literally, not figuratively. It made no sense to suggest that a person could somehow surrender his relationship with and duty to G-d to a government official, or to anyone else for that matter. Throughout the Great Awakening and continuing on to the ratification of the Constitution, advocates of religious liberty insisted on the right of the individual to choose who would minister to his or her spiritual needs and lead him or her in worship. Established religions violated these principles of religious liberty—and thereby prompted the First Amendment—precisely because they employed the coercive power of government to influence the private judgment of the individual in matters of religion.

Coercive collective prayer at city council meetings undermines religious equality by discriminating against minority faiths. And it abridges religious liberty by insinuating the state into the individual’s relationship with G-d and compelling people to engage in prayer that lacks personal authenticity. The Constitution prohibits the state from engaging in such practices.