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.”

The primary claim of the dissent is that the facts of this case are distinguishable in three ways from Marsh (legislative prayer prior to Marsh is not emphasized by the dissent). First, because the town too closely aligned itself with Christianity and therefore gave Christianity an official government imprimatur. The town engaged in “religious favoritism.” Second, because the town meeting is a “hybrid”–the situation here is a “citizen-centered venue” (prayers “directed squarely at the citizens”) where the venue in Marsh was legislator-centered. And third, because the town officials were insufficiently inclusive and did not make adequate efforts to include non-Christian prayers. These three factual differences, Justice Kagan writes, “remove this case from the protective ambit of Marsh and the history on which it relied.” It also seems that the dissent approves the holding of the Fourth Circuit in Joyner v. Forsyth County, authored by Judge Wilkinson, which is interesting in its own right. That is more evidence that the traditional frame controls the dissent. For more on that case and related issues, see Part II(C) of this paper.

Justice Alito’s concurrence responds to the dissent but it is largely a response that disputes factual issues–the reasons for the town’s predominantly Christian prayers, the degree of inclusivity that should pass constitutional muster, the proper characterization of Marsh, and so on. The traditional frame is operative here as well.

Finally, one point of commentary, which I jot down as a suggestion and only because it was such a central part of the rationale underlying Justice Kagan’s dissent. In describing “the country we are,” Justice Kagan writes:

Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture….They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans—none of them different from any other for that civic purpose….In this country, when citizens go before the government, they go not as Christians or Muslims or Jews (or what have you), but just as Americans (or here, as Grecians). That is what it means to be an equal citizen, irrespective of religion….When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another.

That’s an interesting set of statements and it echoes something that Justice Kagan said at oral argument–that “when we relate to our government, we all do so as Americans,” not as religious or non-religious individuals. I wonder whether all agree with this view. I’m not sure that I do. I understand it to be emphasizing and praising equality before the law, and that is certainly a commendable and important ideal. But an alternative position–and one, I think, entirely consistent with the general principle of “pluralism and inclusion” championed by the dissent–is that “when a citizen stands before her government,” she brings to that encounter the full panoply of communal, institutional, associational, and religious commitments and bonds that have characterized the lives of some of the very best citizens of this country, past and present.