Co-authored with Alan E. Brownstein. Cross-posted from Justia's Verdict.
In the space below, we offer our analysis of the oral argument that was held two days ago at the U.S. Supreme Court in this Term's most important case addressing the First Amendment's Establishment Clause, Town of Greece v. Galloway. The litigation 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, the Town has been inviting local clergy to offer an opening prayer after the Pledge of Allegiance has been recited. Prayer-givers deliver their prayers 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 they have been invited to do so by the Town, which often calls them "chaplain[s] of the month."
Some Background on the Legal Theories in Play
As we explained in an earlier column, the U.S. Court of Appeals for the Second Circuit invalidated the Town's practice, finding that the prayers, in context, were best seen as a public endorsement of Christianity, which violated the First Amendment's ban on laws respecting an establishment of religion. In our earlier writing, we agreed with the Second Circuit that the Town's practice violated equality norms that are inherent in the Establishment Clause insofar as the Town was sending messages of inclusion and exclusion. This was especially true, we noted, because the Town's policy focused on majoritarian sects-the Town drew some prayer leaders from a list of congregations printed in the Chamber of Commerce's directory-and thus effectively excluded religious adherents who live in the Town but who lack the numbers to establish a physical congregation within the community.
We also argued that, even apart from equality-based arguments, the Town's policy violated the Establishment Clause's prohibition on religious coercion. In particular, we argued that unlike prayers used to open legislative sessions at the state legislative level (one of which was upheld by the Supreme Court, largely on the basis of unbroken historical tradition, in Marsh v. Chambers), prayers that open local government meetings are very likely to pressure attendees to conform, primarily because the audience at city council meetings has a different role and purpose than the audience at sessions of the state legislature. Most of what a state legislature does involves the formulation and enactment of laws of significant breadth and scope that impact large groups and constituencies. By contrast, the work of a city council or board, in most of the towns and cities of the United States, regularly deals with decisions affecting small groups and individuals. 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. While the people who attend a session of the state legislature are passive observers of the legislature's work, the audience at a city council meeting has a much more participatory role to play. Town residents attend council meetings to speak to, influence, and petition their government before it makes decisions that may significantly impact their lives. So in the setting of a city council meeting, citizens who wish to address the council are coerced to participate in any city sponsored prayers that are offered, since a failure to stand and bow one's head or otherwise join in the prayer would risk alienating the very political decision makers whom they hope to influence.
What Did the Oral Argument Reveal?
Against this background, what do we make of the oral argument that took place earlier this week? With the caveat that it is always dicey to make firm predictions about outcomes from the tenor of an oral argument, and recognizing too, that an hour-long argument will generally contain many more important exchanges than can be summarized in a short essay like this one, we think it may be helpful to focus on five aspects of the controversy that emerged on Wednesday.
First, there seemed to be some agreement among the Justices that the Town's policy is problematic because it does not cast a broader invitation net. From the more liberal side of the Court, Justice Breyer pointed out forcefully that the Town could have done a better job of reaching out to groups that were not Christian, or not even religious at all, to let them know that they were welcome to "appear and to have either a prayer or the equivalent if they're not religious." And the more conventionally conservative Justice Alito explicitly talked about the problems of limiting invitations to congregations that are located in town (a practice we criticized in our earlier writing), instead of including minorities who live in town but who attend houses of worship outside of town.
What this broad agreement means is that the challengers to the Town's policy may well win-in the sense that the policy as it currently operates cannot continue. But the question then becomes whether the victory will be limited to the concern about outreach, or will instead be more broadly focused on the problems with having prayers in this setting more generally, even if all groups are invited to participate.
That brings us to our second point: Justice Kennedy's likely take on the case. To win big-that is, to strike down or limit city council prayers in any significant way-the challengers will likely have to win over Justice Kennedy, the swing vote in this area of constitutional law. How will Justice Kennedy see things? It's hard to say, but interestingly enough, Justice Kennedy might have an easier time invalidating all prayers before city council meetings than he would invalidating "sectarian" prayers but leaving room for non-sectarian ones to continue, the latter position being the one advanced by the challengers and presented to the Court by the eminent law professor Douglas Laycock.
The position Professor Laycock asserted-which, again, would allow non-sectarian prayers but forbid sectarian ones-would seem to represent something of a middle ground, an option that might be thought to appeal to the "center" of the Court. And Professor Laycock pointed out that there is a long tradition of the use of inclusive, non-sectarian prayers in public settings. He observed that early prayers in American public arenas, while undeniably Christian, were not denominationally divisive because America was then a homogeneously Protestant nation. He mentioned, as well, that thirty-seven State legislatures and the U.S. House of Representatives give guidelines to clergy giving prayers in those chambers. And he reminded the Court that, in cases like this one involving local government, the U.S Court of Appeals for the Fourth Circuit has utilized a prohibition on sectarian prayers only that seems to be working out reasonably well.
While these arguments have substantial force, they may not persuade a sufficient number of, or the right individual, Justices. In particular, Justice Kennedy seems to be very resistant to having government engage in any oversight concerning the content of prayers. As Justice Kennedy put it, a line between sectarian and non-sectarian prayers "involves the State very heavily in the censorship and the approval or disapproval of prayers," and would "involve the government very heavily in religion." If Justice Kennedy does not believe that the Establishment Clause can require government to control the content of state-sponsored prayers in any way, however, and that no such line is workable, then Justice Kennedy will be forced to support either banning all prayers in this context, or allowing a free-for-all in which even aggressive proselytizing prayers that demand active participation and validation by audience members would have to be permitted. It appears from Justice Kennedy's questions that he would be more comfortable choosing one of these stark choices than accepting a distinction between sectarian and non-sectarian prayers.
In addition to the practical problem of Justice Kennedy's ostensible opposition to this argument, the sectarian/non-sectarian line has another flaw: It addresses equality-based concerns, but not really coercion-based concerns. Even if most religious groups would accept the generic content of nonsectarian prayers, those individuals who cannot participate in, or attend, such prayers as a matter of conscience are still pressured into conforming by the risk that their non-participation/absence will alienate the very decision makers they are trying to persuade.
A third point involves not the substance, but the timing, of the prayer that is offered. Justice Alito asked Professor Laycock why the separation in time between the opening prayer and the city government's active consideration of specific items before it does not diminish any coercive effect the prayer might have: Audience members who are made uncomfortable by the prayer can simply wait outside and then enter later in the town session when their business items are transacted. Justice Alito's question presupposes that the only part of the meeting where audience members would need to participate involves the board or council's hearing formal proposals or grievances-essentially when the board is acting as an administrative body or in a quasi-adjudicatory capacity.
But Professor Laycock effectively explained that he is also concerned about an earlier part of the public meeting agenda that is quite close in time to the prayers-what we would call the public-comment component, during which the council might consider whether legislative fixes to problems that are identified are needed. As Professor Laycock explained, people raise very personal issues during public comment; even allegedly legislative decisions often involve disputes between very small constituencies, or impact so few individuals that the distinction between legislative and administrative functions has limited meaning or utility in this local government context.
The fourth point we want to mention deals with neither the substance of the prayer nor its timing, but rather the persons to whom the prayer can be attributed. Justice Scalia made the argument that the Board members are citizens, and as citizens they should be able to invoke the deity before beginning serious governmental tasks. What he was suggesting, in other words, is that what looks like a public prayer might be better understood as a private prayer of persons who happen to be convening a public meeting. The problem with this characterization, of course, is that the Board members act in their official-not private-capacity when they invite people to offer prayers at official meetings where government business is being transacted. Consider an analogy: Would we ever think of saying that because Board members are citizens, and because citizens can hold political rallies and raise money, Board members can hold a political rally to raise money for their campaigns at the beginning of Board meetings?
Fifth, and finally, consider an observation that Justice Kagan made about the goal of the religion clauses of the First Amendment being to allow people in this country of different faiths to live harmoniously together. In particular, Justice Kagan worried aloud that when the Court lays down rules enforcing the Establishment Clause, people might see the Court as hostile to religion and get angry as a result. And this runs counter to the constitutional objective of having people live together in a religiously peaceful and harmonious way.
We understand Justice Kagan's concern, but we think there are powerful responses to it. For starters, protecting minority liberty and equality rights often risks an angry reaction from the majority. And protecting minority rights is frequently challenged as disturbing the harmony of the community. But harmony that exists on a foundation of hierarchy and coercion is not true harmony; minority silence in the face of discrimination and burdens on liberty should not be misconstrued as peace, so much as seen as an enforced and temporary cease-fire.
Moreover, if it is legitimate for the Court to take into account how its decisions are processed by the citizenry, the great majority of whom value religion, the way for the Court to avoid being misunderstood as being hostile to religion would not be to undercut the anti-coercion, pro-equality values of the Establishment Clause, but rather to more rigorously protect meaningful Free Exercise rights. If Free Exercise rights were taken seriously, it would be more difficult for the Court to be criticized as anti-religious.
Lastly, if the Court ignores the liberty and equality interests of religious minorities in the name of achieving harmony, it sends an unmistakable message to religious minorities: You cannot rely on the Constitution to protect your liberty and equality interests, and the only way to protect yourself against discrimination and coercion is to live in communities where there are a sufficiently large number of people who adhere to your faith so that you can protect yourselves politically. Such a message would create a "harmony" only by virtue of a religiously fragmented and balkanized society where people of different faiths do not live together in religiously integrated communities. By contrast, we feel that what enables people of different faiths and no faith to all live together in meaningful harmony is the knowledge that the Constitution requires government to recognize that everyone, regardless of their beliefs, is of equal worth and must be treated with equal respect.