Tag Archives: Endorsement Test

Disapproving Religion in the NYC Subway

Here’s a post about two advertisements I happened to see while riding the New York City subway this past weekend. The ads reveal much about the subtle disparagement churches and other religious organizations sometimes experience from government agencies in the Big Apple.

subwayTake a look at the photo on the left. It shows an ad for Marble Collegiate Church in Manhattan. As far as I can tell from its website, Marble is a mainline, Protestant congregation, committed to progressive causes like diversity and same-sex marriage. Marble, the ad proclaims, is “church the way you always hoped it would be.”

Pay particular attention to the bottom of the ad, which contains a disclaimer added by the MTA, the government agency that runs the subway. The disclaimer is in bold type and takes up about 25% of the ad space. It is unsightly, in a different font and format from the rest of the ad, and definitely distracts the reader. It says: “This is a paid advertisement sponsored by Marble Collegiate Church. The display of this advertisement does not imply MTA’s endorsement of any views expressed.”

This is very odd. True, the Supreme Court’s “endorsement test” provides that government may not take actions a reasonable observer could understand, in the circumstances, as an endorsement of religion. (This explains why local governments are so careful about Christmas decorations on public property). The MTA presumably insisted on the disclaimer to make clear to subway riders that, by posting Marble’s ad, it did not endorse the church’s underlying religious message.

But the endorsement test does not require a disclaimer here. No reasonable observer could think the MTA had endorsed Marble’s message by posting its ad. There are ads in subway cars for a variety of businesses and nonprofit organizations. Nobody thinks the MTA vouches for the truth of those ads, or even the good faith of the sponsors. Will cosmetic surgery “change your life?” Will Foursquare “lead you to places you’ll love?” Who knows? But the MTA doesn’t think it necessary to attach disclaimers. No one would expect it to do so.

For example, here’s an ad my brother pointed out to me, for a company boozecalled delivery.com. The ad says the company will deliver beer, wine and liquor on demand, thereby allowing customers to “Booze Wisely.” There’s no MTA disclaimer in this ad. But why not? If reasonable people could think the MTA had endorsed Christianity by posting Marble’s ad, why couldn’t they think the MTA had endorsed drinking by posting delivery.com’s? If anything, the danger of misunderstanding is higher. The delivery.com ad offers a 30% discount to people who include the word “SUBWAY” with their orders. Marble didn’t trade on the name “subway” or offer special treatment for straphangers.

Now, supporters of the MTA’s disclaimer policy might argue there’s no real harm here. The disclaimer merely reminds people of an important constitutional principle, namely, that civil government does not take positions on the truth of religious propositions–like whether Marble really is, as its ad claims, what people would hope from a church. At worst, the disclaimer is a bit unnecessary. What’s the cause for complaint?

It’s this: Requiring church ads–and only church ads–to include disclaimers is a kind of disparagement that places churches at an unfair disadvantage in the marketplace of ideas. The inescapable implication is that there is something uniquely impolite and dangerous about religion–more than doubtful cosmetic treatments, consumer fantasies, and boozing it up at home–and that government must keep its distance. The MTA’s policy doesn’t suggest state neutrality respecting religion, but disapproval. For the record, the endorsement test prohibits that as well.

UPDATE: Perry Dane points me to the MTA policy, which actually extends to ads with “political” and “moral” content as well as “religious.” I’m surprised, because I’ve seen plenty of ads with political and moral messages that don’t carry disclaimers, but maybe the MTA just hasn’t gotten around to labeling everything. Still, the differential impact on religious messages has implications under the endorsement test.

Removing Christmas (and Everything Else) from the School Calendar

Here’s a lesson in how to irritate everybody. Last week, the Board of Education in Montgomery County, Maryland, a wealthy suburb of Washington, DC, voted to remove references to religious holidays from its public school calendar. Starting next year, students will have off for “Winter Break” rather than Christmas, “Spring Break” rather than Easter, and two unnamed holidays rather than Rosh Hashanah and Yom Kippur. The decision came after a Muslim group requested that schools also close for a Muslim holiday, Eid al-Adha. Rather than declare Eid a holiday, the board decided to remove religious references altogether.

The board apparently believed that retaining the names of religious holidays is constitutionally problematic. That is not so. Naming school holidays after widely celebrated religious observances does not violate any of Supreme Court’s many Establishment Clause tests, even the so-called endorsement test. Consider Christmas, for example. Closing on December 25 does not endorse the religious meaning of the holiday. It simply acknowledges the fact that most students and staff would stay home. And as everybody, including the state and federal governments, refers to the holiday as Christmas, it’s natural for the school calendar to do the same. In fact, expunging the word “Christmas,” after it has been in the calendar for so long, suggests hostility to the religious meaning of the holiday. Such a suggestion itself creates problems under the endorsement test.

What about the fact that the schools recognize the holidays of some religions, but not others? Doesn’t that suggest hostility for religions the schools ignore? Obviously some Montgomery Country Muslims took it that way, and one must respect their feelings. But there’s a very good administrative reason why Montgomery County schools don’t close on Eid. Only about 1% of the county’s population is Muslim. There are simply not enough Muslim students and staff to justify closing the schools–just as there are not enough Hindus to justify closing schools on Hindu holidays, or Buddhists to justify closing schools on Buddhist holidays. That’s not a reflection of disrespect for those religions, but an acknowledgement of demographic reality. It’s worth noting that the Montgomery County schools excuse absences for Muslims who observe Eid.

I could explain why the other Establishment Clause tests also would allow schools to close for some religious holidays but not others, but there’s no point belaboring things. The Constitution does not require what the board did. But the board’s decision is worse than wrong; it’s pernicious. Striking the names of religious holidays has only served to create religious conflict. Many Christians and Jews have expressed dismay, as has the Muslim organization that requested the Eid holiday in the first place. That organization now worries, not implausibly, that angry parents and students will blame Muslims for the board’s decision. That would be unfair. The organization didn’t ask the board to rename these other holidays; that was entirely the board’s doing. But many people will ignore that fact.

In a pluralistic society like ours, respect is a crucial value. Respect for religious traditions other than one’s own promotes harmony and social peace. But recognizing a religious holiday that many students and staff observe doesn’t express disrespect for other religions, and the board’s decision to rename Christmas–as well as the other holidays–has done nothing to promote religious harmony. The board has created an entirely unnecessary, uncomfortable situation in which everyone feels aggrieved. One could hardly call that progress.

Bloomberg Law Interview About Town of Greece and Elmbrook School District

I was interviewed today on Bloomberg Law about the petition in the Elmbrook School District decision out of the Seventh Circuit and the possible effect of the Supreme Court decision in Town of Greece. You can download the podcast here. My segment starts at about the 7.30 minute mark.

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.”

CLR Podcast on Town of Greece v. Galloway

Mark and I have recorded a podcast discussing Town of Greece v. Galloway, the legislative prayer case just argued at the Supreme Court, in the Center’s first in a planned series of podcasts on law and religion cases and issues.

We tried to be fairly complete in our discussion of the case, and I think this podcast is particularly useful for students and others interested in an introduction to the issue of legislative prayer and in some fairly detailed analysis of and commentary about the oral argument.

The Downward Spiral of Legal Insult

Here’s a story about the banning of Halloween festivities in some public school districts in Pennsylvania. Many of the reasons are unremarkable–worries about security and the secreting of weapons under costumes, concerns about taking away from regular classroom instruction.

But at least some of the reasons stem from conceivable First Amendment violations. And these reasons relate directly to the issue of Halloween’s putative offensiveness to Christians. “Right now,” said Professor Charles Haynes, “school officials should be sensitive that for many people witches, ghosts, and demons have religious connotations, however much they may be sanitized in culture.”

The argument appears to track the sort of constitutionalized insult claim that I discussed and criticized in this post. There, I asked the question of who, precisely, could possibly be offended, or confused, by the state’s lighthearted celebration of a silly occasion like Halloween for the sake of schoolchildren. It might seem from this story, and from Professor Haynes’s comments, that, in fact, there are many people who take deep offense at Halloween as a “religious” celebration that is insulting to Christians.

But a close reading of the story reveals that it is not confusion or insult at Halloween per se that is driving at least some such complaints. It’s rather the memory of the government’s perceived marginalization of Christmas on prior occasions–again, ostensibly to adhere to the Supreme Court’s heckler’s veto jurisprudence of offensiveness in this area–that has inflamed a sense of hurt and offense. As Haynes puts it: “If you can’t have Jesus in December, why can we have witches in October?” (emphasis mine) Haynes says that he “understands that claim.” I understand it too but that claim has nothing to do with Halloween itself. That assertion of hurt feelings suggests that it isn’t anything about Halloween or ghosts or dress-up or whatever that is confusing or hurtful for religious reasons. Celebrations of Halloween have been occurring in schools for decades now, and it would be odd to see a sudden “backlash” against Halloween on these grounds.

Rather, it is the perceived marginalization of Christmas by the school district–and the offense and hurt feeling that that has caused–which now bubbles up and finds expression in complaints about Halloween as a “religious” occasion. An occasion that previously was only slightly offensive, or not offensive at all, has become much more offensive in light of the culture of offense that itself is felt to have down-graded holidays like Christmas.

So goes the logic of insult–responsive as it is to tit-for-tat hurts and slights. It would be unfair and probably incorrect to say that the Supreme Court is primarily responsible for cementing a culture of insult in law. But by adopting a jurisprudence of offense in this area, it has set itself up for an untenable downward spiral of legal insult, as more and more occasions, activities, and educational traditions become the object of legal claims of unfairness, inequality, or offensiveness.

On the Insulting Claim that Religious Displays are Insulting

Hurt feelings are unreliable bases for constitutional law. People are insulted by all Charles_I_Insulted_by_Cromwell's_Soldierssorts of things, their feelings of insult can change at breathtaking speed, and it is difficult to explain what ought to count as a constitutionally cognizable insult, and what ought not to, and why. And there is no area of constitutional law that is more dependent on judicial investigation and perception of insult or hurt feelings than the Establishment Clause–particularly the standard used to evaluate the constitutionality of religious displays by the government. Readers of this blog are probably familiar with the endorsement test, which demands that judges inquire after the degree to which a display might make someone feel like an outsider, or not fully part of the political community. That is a standard that depends on both judicial perception of insult and comparative valuations of insult (not all insults count).

My aim in this post is not to talk about that category of hurt feeling or insult, but about a related but less prominent argument about insults that one sometimes hears in connection with state-sponsored religious displays. It is the argument that for a religious person, when the government displays a religious symbol, it thereby robs or despoils the symbol of its sacredness. And when government then describes the nature and value of the symbol in non-religious terms (in cultural terms, for example, or in historical terms, or in secular terms), that constitutes an insult to religious people. So, for example, the constitutional category of “ceremonial deism” that is used to describe the phrase “In God We Trust” on money, or the phrase “under God” in the Pledge of Allegiance, is said to be deeply offensive to religious believers. Similarly, the description of the crucifix by Italian judges in the Lautsi v. Italy litigation as a symbol of national historical importance is said to cause hurt feelings among Catholics. By describing (or perhaps defining) a symbol in cultural or historical terms, the government thereby appropriates and degrades the symbol in the eyes of religious believers–and it’s “their” symbol, after all–draining it of religious content. One can see strong traces of the claim and the sense of indignation and insult in Justice Thomas’s concurring opinion in Van Orden v. Perry: “Telling either nonbelievers or believers that the words ‘under God’ have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like ‘God’ are not vulgarities for which the shock value diminishes with each successive utterance.” This argument from insult certainly is understandable and it resonates with many people, including some of my friends.

But not with me, I’m afraid. If anything, I find the argument itself insulting. The argument assumes that religious people are so thick-headed, or so culturally illiterate, or so confused about the nature of their faith and its symbols’ meanings, or so hyper-attentive to the government’s activities, or so insular, parochial, and unsophisticated, that they cannot understand the difference among (a) a cross that is displayed in a church; (b) a cross that is displayed at a cemetery; and (c) a cross that is displayed as a Halloween joke. Who doesn’t understand those differences, and the differences in meaning that they convey? Who is confused? And is not the imputation of confusion, hurt feelings, and cultural simple-mindedness itself offensive? Those poor hayseed religious believers, bearing the psychological cross of their egg-shell sensitivities about their symbols! To argue that any act of the state–least of all its display of a cross at a war memorial or some statement about God on money or in a secular national pledge–could adulterate what a religious symbol like the cross means to Christians is to make a very unflattering claim about the strength with which those Christians believe, about the quality of their intellectual awareness and cultural acumen, and about just how little it takes to shake them up and distress them.

The argument also assumes that a government’s decisions about a symbol really command, and ought to command, the attention of the religious. But what difference should it make that government “degrades” a symbol like the cross? Does the government have the power to degrade the Christian meaning of the cross? Do we look to the government to define the Christian meaning of the cross? That meaning is not the government’s to define! To fret about state-sponsored religious degradation is implicitly to acknowledge the state’s authority in an area where it has none. That the government (or anyone else, for that matter) may use a symbol for secular purposes of its own should do nothing to trivialize the Christian meaning, or to destabilize religious commitment or religious understanding, unless the suggestion is that the religious commitment runs no deeper than attachment to the symbol’s secular meanings. Brand dilution may work for trademark law, where all symbols operate and compete at the level of the profane market, but it has little place here.

But as I say, it is difficult to tell someone not to feel hurt or insulted. I can certainly understand the sense of insult at a perceived usurpation of a religious symbol, but it is not a feeling I share at all when the Supreme Court trots out such  coarse euphemisms as “ceremonial deism” to justify and explain the sorts of secular uses of religious symbols and religious language that date back at least to the late Roman empire. For myself, I am more offended by what the arguments from insult imply about religious believers’ savvy and understanding of the world, as well as of their own beliefs.

All of that, I suppose, is to return to the beginning, and to repeat my view that feelings of insult and offense are unsound grounds for constitutional law.

[Image: Delaroche’s “Charles I Insulted by Cromwell’s Soldiers”]

Devil’s Cross

I was rereading the Supreme Court’s opinion in Salazar v. Buono, the case concerning a cross erected in the Mojave Desert in 1934 by a group of veterans in order to commemorate American soldiers who died in World War I. In his dissenting opinion, Justice Stevens took his usual rigid view in any case dealing with display of symbols: the cross “necessarily” conveys an “inescapably sectarian message….Making a plain, unadorned cross a war memorial does not make the cross secular. It makes the war memorial sectarian.” Justice Stevens also cited approvingly the district court judge’s view that the cross is “exclusively a Christian symbol.”

The more I read these lines, the more implausible I find them and the view of symbols that they represent. Perhaps another way to put my skepticism is that any observer who believed this about a symbol like the cross would be unreasonable–the sort of person who could not effectively administer a “reasonable observer” standard in Establishment Clause cases of this kind. The implausibility of the view is conceptual but it also is empirical. Though I recognize that anecdotes are not data, still, personal experience is worth something. The “holiday” of Halloween was for children when I was a child, but it seems to have become a kind of modern-day equivalent of Venetian Carnevale circa 1760. No matter; this year, I am grateful to Halloween for offering a useful challenge to claims about what the symbol of the cross must mean, in all times and places, for all people.

My neighborhood is child-saturated, and as a result Halloween is widely and noisily celebrated. Part of the celebration involves the display of putatively spooky lawn decorations of motley sorts, among the most popular of which is the “creepy gravesite” ensemble. It used to be that round headstones were the convention. But now one increasingly sees in such arrangements the presence of a cross. Here’s a fairly typical setup:

Devil's CrossProbably my surreptitiously taken picture does not do justice to the mise en scène. But what it displays is a simple black Latin cross with the words RIP at the base. You can see that the cross is surrounded by other Halloween acoutrements–a skeleton in the ground, gravestones, spiderwebs. All around these sit related objects–werewolves and other hairy and unsavory creatures, a plastic witch, ghosts dangling from trees with flashing red eyes, and so on. This sort of decorative landscape is extremely common. The presence of a cross in it is less so, but just in my own neighborhood, I counted 4 displays that contained a cross of some sort.

Suppose that a municipality chose to display something like this on town hall grounds at Halloween. What would it be communicating? What does a cross mean in a display like this? Its meaning is complicated because it is situated in several contexts. It sits first within a mock cemetery but the point of the display is not remotely either commemorative (as in a memorial for the dead) or Christian. The point of the display is to celebrate, in a lighthearted, cute, and possibly mischievous way, all that Halloween has come to represent as an occasion for kids: the occult, mild wickedness, spookiness, and so on. It would make a dour schoolmarm of Christianity to say that displays like this are anti-Christian. Of course they are not. But it would verge on sheer absurdity to claim that a cross in this sort of context conveyed “an inescapably sectarian message,” or that what would otherwise be a tribute to spooky kid fun just must be transformed into a celebration of Christ by the inclusion of a cross.

It is true that even in this context, the meaning of the cross is to some extent connected to the original Christian meaning. It is so connected in this weak way: had there been no prior Christian meaning, there could have been no subsequent tradition in which crosses have come to convey a commemorative message, and therefore no cultural context within which a cross could come to find its way into a Halloween cemetery display. But noting that atavic genealogical connection is very different than assigning this particular cross–or others like it–an indelibly Christian meaning today.

It might be argued that the meaning associated with the Halloween cross only arose because people are ignorant of the Christian, soteriological meaning. That seems uncharitable to me, but also mistaken. What is more probable is that meanings intertwine, and that it becomes difficult over time to disaggregate the religious meaning from other fair, culturally specific interpretations. As I write in The Tragedy of Religious Freedom about the Mojave Desert Cross:

Just as it is impossible to distinguish precisely where the religious ends and the artistic begins in a Bach oratorio, a Giotto fresco, or a Dantean canto, so, too, is it fruitless to attempt to tweeze away the Buono cross’s civic submeanings from an antecedent religious meaning. But the fact that it is unprofitable to perform this exercise in segregation, and in quantifying the importance of this or that meaning, does not mean that permitting these various submeanings to exist is equivalent to condoning state sponsorship of religious belief. Religious and cultural meanings may and do interpenetrate across time. And meanings that emerge from that interpenetration are not ipso facto constitutionally impermissible, but invitations to historically and contextually graduated judgment.

Haupt on Active Symbols

Our friend and former Center for Law and Religion Forum guest Claudia Haupt (Columbia) has posted her paper, “Active Symbols,” forthcoming in the Boston College Law Review. The abstract follows.

Visual representations of religious symbols continue to puzzle judges. Lacking empirical data on how images communicate, courts routinely dismiss visual religious symbols as “passive”. This Article challenges the notion that symbols are passive, introducing insights from cognitive neuroscience research to Establishment Clause theory and doctrine. It argues that visual symbolic messages can be at least as active as textual messages. Therefore, religious messages should be assessed in a medium-neutral manner in terms of their communicative impact, that is, irrespective of their textual or visual form.

Providing a new conceptual framework for assessing religious symbolic messages, this Article reconceptualizes coercion and endorsement—the dominant competing approaches to symbolic messages in Establishment Clause theory—as matters of degree on a spectrum of communicative impact. This focus on communicative impact reconciles the approaches to symbolic speech in the Free Speech and Establishment Clause contexts and allows Establishment Clause theory to more accurately account for underlying normative concerns.

Garnett on the Legislative Prayer Case

My friend Rick Garnett has an extremely sensible post about the legislative prayer case, Town of Greece v. Galloway, which will be heard this term by the Supreme Court. A bit from Rick’s analysis:

[J]udges evaluate, and sometimes disallow, policies that majorities considered, argued about, and embraced.  Because, again, majority rule is the usual way we go about political decisionmaking, this evaluation and – especially! – disallowing is a big deal, and it’s important that the work of judicial review be done right.  Whether or not it is depends, I suggest, on (at least) three related variables:  First, identifying, as correctly as possible, the judicially enforceable meaning of the constitutional text in question; secondthe prudent design and development of workable doctrines that courts can use to decide real-world cases; and third, affording the appropriate deference, if any, to those actors whose decisions are being reviewed and who, presumably, decided that those decisions were constitutionally sound . . . .

[T]he Court can aspire to do well with respect to…doctrine and deference.  The court of appeals, its opinion states, saw “no test-related substitute for the exercise of legal judgment” and it characterized the case as a “fact-intensive” one “which def[ies] exact legal formulas[.]”  In the end, though, it couched its decision in “endorsement test” terms, and reported that “several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials,” supported the conclusion that “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.”  But neither throwing aside doctrines and tests in favor of “legal judgment” nor engaging in unstructured speculation, however “contextual,” regarding imagined reactions, impressions, and beliefs that “can give only limited guidance to municipalities that wish to maintain a legislative prayer practice” is a sensible or appropriately deferential way for a reviewing court to play its role.  A relatively clear, historically rooted standard, the tool employed in the Marsh case, works better, and is the more consistent justification for judicial review.

Of course, not all permissible practices are best practices or even good ideas.  Even if the court of appeals reached the wrong conclusion, in an unsatisfying way, about what the Constitution allows, its suggestion to towns that they “pause and think carefully before adopting legislative prayer” is sound advice.  Although it is true that many of us – and, in many places, most of us – believe that it is both appropriate and right to seek God’s help with the important business of living together and well in political communities, it is also true that ours is a religiously pluralist society that is becoming more so.  In such a society, as the American Jesuit scholar, John Courtney Murray, wrote, “[men and women] of all religions and of no religions must live together in conditions of justice, peace, and civic friendship.”  The line that separates policies that build up this friendship from those that tear it down is important, even if judicial review is not always the best way to find it.

Rick’s post is part of an on-line symposium at SCOTUSblog discussing various features of the case; the other posts may be found here.

For what it’s worth, I think the most interesting thing about the case does not concern legislative prayer itself, but the fate of the endorsement test, though this is not an issue that the Court would need to reach if it finds itself in a minimalist mood.