Tag Archives: Supreme Court

Want to Understand the Possible Implications of the Legislative Prayer Case?

Then you should read these two posts by Kevin Walsh.

In the first post, Kevin explains the way in which Justice Kagan’s dissent lines up in important ways with the views of Judge J. Harvie Wilkinson in his opinion for the Fourth Circuit in Joyner v. Forsyth County (Justice Kagan explicitly relies on some language in Joyner, but the similarities in outlook run deep).

The second post discusses a pending cert. petition–the Elmbrook School District case out of the Seventh Circuit in which Judges Easterbrook, Posner, and Ripple authored dissents from the court’s en banc opinion–and what might happen to it in light of the Court’s holding in Greece.

Both issues are discussed at length in the article that Kevin and I wrote together–Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory (see in particular Parts I(B) and II(C)). You should read that too!

Yesterday’s Decision in Town of Greece

Another Establishment Clause case, another 5-4 decision. Another fact-specific ruling in which Justice Kennedy provided the deciding vote. Another separate opinion by Justice Thomas arguing that it makes no sense to apply the Establishment Clause against the States in the first place. More high-blown rhetoric about What American Means and why the Court’s decision honors our traditions or betrays them. Just another day at the office for the Justices.

It’s possible to see yesterday’s decision in Town of Greece, the legislative prayer case, as just one more, muddy Establishment Clause case that doesn’t settle much of anything. Justice Kennedy’s opinion for the Court doesn’t announce a hard-and-fast rule. Indeed, he wrote, “it is not necessary to define the precise boundary of the Establishment Clause where history shows that [a] specific practice is permitted.” Legislative prayer has a very long history in America, dating back at least to the Framing. The Town of Greece’s practice of having prayer before the start of  town board meetings fell within that tradition. The Justices adduced several facts to support this: the town had made reasonable efforts to be inclusive, selecting clergy at random from a community guide; prayers took place before the part of the meeting devoted to legislative business; people could come and go as they pleased; there was no indication that the town had deliberately discriminated against minority religions. In a helpful concurrence, Justice Alito pointed out that the difference between the Court’s opinion and Justice Kagan’s dissent turned on disagreements about the proper interpretation of one or two facts.

All this is true. We may look back at Town of Greece as a narrow holding without great consequence. Yet something tells me this decision could turn out to be quite significant. Let me make two quick observations about what I see as important themes in the case: the rejection of nonsectarianism and the embrace of localism.

First, the Court stated very clearly that neutrality does not require that legislative prayer be nonsectarian. It is constitutionally permissible, the Court held, for a town to invite only Christian clergy–or just about–to offer prayers, as long as the town does not intentionally discriminate against minority religions and as long as the prayers do not create a pattern of proselytizing or disparagement of other religions.

This suggests an important shift. A major theme (among others) in the Court’s recent public religious display cases–cases involving creches and the like–is that government displays must be nonsectarian. Religious displays that suggest a preference for one religion over another are unconstitutional. In the context of legislative prayer, however, the Court now seems to be moving away from that principle. Of course, the Court may continue to insist on nonsectarianism outside the legislative prayer context; future cases will tell. But the Court’s willingness to allow sectarian religious expression in this case is a development worth watching.

Second, the Court’s opinion gives a great deal of deference to local governments. The town’s employees could have taken additional steps to make sure the clergy they invited were not so overwhelmingly Christian. Instead of relying on a community guide listing places of worship within the town–all of which were Christian–they could have expanded their search to the surrounding area. For example, many Jewish residents of Greece worshiped at synagogues across the town line in Rochester. If the employees had done a little more research, they would have known this, and they could easily have asked the rabbis from those synagogues to participate.

The Court was not willing to require any more from the town, however. In fact, in his concurrence, Justice Alito argued that it wouldn’t be fair to require more, since “the informal, imprecise way in which the town lined up guest chaplains is typical of the way in which things are done in small and medium-sized units of local government.” To require more could dissuade “local officials, puzzled by our often puzzling Establishment Clause jurisprudence and terrified of the legal fees that may result from a lawsuit claiming a constitutional violation,” from allowing legislative prayer at all.

The deference the Court showed the Town of Greece is significant, I believe. Steve Smith has written about the desirability of local solutions in Establishment Clause cases. The Court seems to be endorsing localism in this case. Towns are not required to have legislative prayer, of course. But those many towns that do wish to start their meetings with prayer–even exclusively Christian prayer–will now be able to do so, as long as they show that they made reasonable efforts to be inclusive. And if the only places of worship in town are Christian, then it’s reasonable for the town to have only Christian prayers. That’s the upshot of the Court’s decision.

In my law and religion seminar, I tell students that most of our fights about the Establishment Clause boil down to this: What can a religious minority reasonably require of the majority? Or, put differently, how far must the majority go to accommodate the sensibilities of the minority? Here, the Court seems to be saying, if a town is overwhelmingly Christian, non-Christians cannot legitimately expect that legislative prayers will be anything but overwhelmingly Christian. To insist on something else would be unreasonable. What about those few citizens who do object to the repeated recitation of Christian prayer at town meetings, who feel genuinely offended? What word does the Court have for them? Well, there are other towns.

Why Protect Religion?

Tocqueville understood

A growing number of legal scholars question whether a justification exists for protecting religion as its own category. Yes, the text of the First Amendment refers specifically to religion, they concede, but that’s an anachronism. As a matter of principle, religion as such doesn’t merit legal protection. Instead, the law should protect individual conscience, or private associations generally. In fact, it’s not just scholars. In the ministerial exception case a couple of years ago, the Obama Administration argued that the Religion Clauses did not even apply and that the Court should decide the case under more general associational freedom principles.

The Justices unanimously dismissed the Obama Administration’s argument in Hosanna-Tabor, and there seems little chance the Roberts Court will read the Religion Clauses out of the Constitution. But history shows that constitutional text is not an insurmountable barrier, and those of us who think religion as such does merit special protection will need to find arguments beyond the bare language of the First Amendment. In fact, in an increasingly non-religious society, we’ll have to find arguments that appeal to people without traditional religious commitments.

Here’s one such argument. Religion, especially communal religion, provides important benefits for everyone in the liberal state–even the non-religious. Religion encourages people to associate with and feel responsible for others, to engage with them in common endeavors. Religion promotes altruism and neighborliness and mitigates social isolation. Religion counteracts the tendencies to apathy and self-centeredness that liberalism seems inevitably to create.

Tocqueville saw this in the 19th century. Egalitarian democracy, he wrote, encourages a kind of “individualism.” It trains each citizen to look out for himself according to his own best judgment and discount the needs of the wider society. Self-reliance is a good thing; at least Americans have long though so. But the attitude poses two great dangers for liberal society. First, it makes it difficult to motivate people to contribute to the common projects on which society depends: public safety, schools, hospitals, and the like. Second, it makes it easier for despotism to arise. The despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to the concerns of others, so that the state can easily divide and dominate them all.

Tocqueville saw that voluntary associations could lessen these dangers. Religious associations are particularly useful in this regard. They are uniquely good at promoting social engagement–secular as well as religious. According to sociologist Robert Putnam, for example, regular churchgoers are more likely to vote, serve on juries, participate in community activities, talk to neighbors, and give to charities, including non-religious charities. And when it comes to defying state oppression, no groups are more effective than religious associations, which can inspire members to truly heroic acts of resistance, as dictators down the centuries have learned.

To be sure, religions don’t always encourage civic fellowship; to the extent a religion promotes sedition or violence against other citizens, society does not benefit. And perhaps, as Gerald Russello suggests, the non-religious have come so to distrust religion that they will view its contributions as tainted and objectionable from the start. But in encouraging greater social involvement, religion offers benefits to everyone, believers and non-believers, too. It’s worth reminding skeptics of this when they argue that religion, as such, doesn’t merit legal protection.

The Weekly Five

This week’s collection of five new articles from SSRN includes Corinna Lain’s history of Engel v. Vitale, the school prayer case; Anna Su’s review of Steve Smith’s new book on the decline of religious freedom; and pieces on corporate social responsibility in Asia; Christianity and other foundations of international law; and the will to live.

1. John D. Haskell (Mississippi College-School of Law), The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism. According to Haskell, three traditions constitute “modernity” in international legal scholarship—Christianity, Liberalism, and Marxism. These three traditions differ from one another but also have some similarities. He writes, “my hope is that in studying each tradition, we can find a new synthesis that allows fresh analytical tools to conceive the dynamics of global governance today and how they might be addressed.”

2. Corinna Lain (University of Richmond), God, Civic Virtue, and the American Way: Reconstructing Engel. In this history of Engel v. Vitale, the 1962 Supreme Court decision that struck down school prayer, the author argues that the conventional wisdom has the case wrong. Engel was not an example of the Court’s standing bravely against a popular majority. If the Justices had understood how controversial their decision would be, she maintains, they would not have taken the case to begin with. Instead, Engel demonstrates the power of judicial review in stimulating democratic deliberation on the Constitution—what some scholars call “popular constitutionalism.” She argues that popular antipathy to the decision resulted from misunderstandings provoked by the media.

3. Marvin Lim (Independent), A New Approach to the Ethics of Life: The “Will to Live” in Lieu of Traditionalists’ Notion of Natural/Rational and Progressives’ Autonomy/Consciousness. The author maintains that both traditionalist and progressive justifications for protecting human life are inconsistent and unconvincing. In their place, he argues for an ethic of the “will to live.” What ultimately matters is whether actions respect or violate this ethic. This approach would allow abortion and assisted suicide in at least some circumstances, he says.

4. Arjya B. Majumdar (Jindal Global Law School), Zakat, Dana and Corporate Social Responsibility. In this essay, the author traces the tradition of charity in Islam, Hinduism, and Buddhism and explores the relevance of that tradition in corporate law. Especially in Asia, the author says, where corporations have relatively few shareholders and tend to be family or individual operations, religious traditions of charity can play an important role in boosting corporate social responsibility.

5. Anna Su (SUNY Buffalo), Separation Anxiety: The End of American Religious Freedom? This is a review of Steven D. Smith’s new book, The Rise and Decline of American Religious Freedom. Su disagrees with Smith that the Supreme Court’s twentieth-century Religion Clause cases threaten the existence of religious freedom. “These decisions,” she writes, though frustrating and incoherent as they might seem, in fact, are as responsible for the remarkable religious pluralism that exists in American society today as much as for the contemporary secular extremism that Smith deplores.”

CLR Podcast on Sebelius v. Hobby Lobby

In our most recent podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss last week’s oral argument in Sebelius v. Hobby Lobby, the Contraception Mandate case. We address the background of the litigation, the rhetorical strategies adopted by each side, and the major doctrinal questions the Court will need to resolve. We also make predictions about how the Justices will ultimately rule. The podcast will be useful for students and others looking for an introduction to this extremely important case.

Conference on Hobby Lobby (March 24)

Georgetown’s Berkley Center and Baylor’s Institute for Studies of Religion will host a conference on the Hobby Lobby case on March 24 at the Willard Hotel in Washington, DC:

Is religious freedom good for business? Can religious liberty aid economic development, or help reduce poverty? What are the limits of religious freedom? Under the law, are for-profit businesses entitled to the exercise of that right in the United States? Does the HHS contraceptive mandate under the Affordable Care Act restrict the religious freedom of businesses? What are the legal, economic, and political implications of the answer to that question?

On March 24, the day before Supreme Court oral arguments on the Hobby Lobby case, the Religious Freedom Project at Georgetown University’s Berkley Center for Religion, Peace & World Affairs will co-sponsor a half-day conference on these and related questions. The conference will announce a new partnership between the Religious Freedom Project and Baylor University’s Institute for Studies of Religion, the co-sponsor of the event. The conference will begin with an “On Topic” keynote conversation between Baylor University President and Chancellor, Judge Ken Starr, and Harvard University Law Professor, Alan Dershowitz.

Details are here.

A Column on Legislative Prayer

I have a short column up at Commonweal on Town of Greece v. Galloway (which the Supreme Court is now considering) and the general question of the constitutionality of legislative prayer.

“Prayer is serious business”

With Thanksgiving weekend coming to an end, it seems like a good time to share a few words about Town of Greece v. Galloway, the legislative prayer case on which the Supreme Court heard oral argument early last month, on November 6.

I have a special personal interest in this case because I was a law clerk to William J. Brennan, Jr. when the Supreme Court decided Marsh v. Chambers, the case that first upheld the practice of legislative prayer on essentially historical grounds, and worked on Justice Brennan’s dissent.  The dissent argued, compellingly I think, that official legislative prayers violated the Establishment Clause despite their long history in both Congress and state legislatures.  But my favorite passage in the dissent, and the one possibly most relevant to the Town of Greece case, is this:

[L]egislative prayer, unlike mottos with fixed wordings, can easily turn narrowly and obviously sectarian.  I agree with the Court that the federal judiciary should not sit as a board of censors on individual prayers, but, to my mind, the better way of avoiding that task is by striking down all official legislative invocations.

More fundamentally, however, any practice of legislative prayer, even if it might look “nonsectarian” to nine Justices of the Supreme Court, will inevitably and continuously involve the State in one or another religious debate.  Prayer is serious business — serious theological business — and it is not a mere “acknowledgment of beliefs widely held among the people of this country” for the State to immerse itself in that business. Continue reading

Ron Colombo on Yesterday’s Cert Grants

At Constitution Daily, Hofstra’s Ron Colombo, a past guest here at CLR Forum, has a helpful essay on the contraception mandate cases on which the Court granted cert yesterday. Ron argues that for-profit corporations like Hobby Lobby, the respondent in one of the cases, have standing to raise a free exercise claim:

Hobby Lobby … is owned and operated by a family deeply devoted to its Christian faith.  The company’s statement of purpose commits it to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”  Unlike so many companies today that put profits over people, Hobby Lobby pledges to “[s]erving [its] employees and their families by establishing a work environment and company policies that build character, strengthen individuals, and nurture families.” . . .

So the question becomes:  does the First Amendment provide the protections necessary for businesses such as Hobby Lobby to exist?  Or, to frame things differently:  are individuals free under the U.S. Constitution to follow the dictates of their consciences into the private sector, and to start businesses with practices that are religiously informed?  Businesses around which workers, customers, and investors with shared religious values and beliefs can coalesce?

As should become readily apparent, the recognition of “corporate free exercise rights” ultimately redounds to the protection of individuals.  For it is through religiously expressive corporations that many people wish to live out their faiths.  Can it really be the case that the Constitution effectively consigns these individuals to careers and options only in the world of non-profits?  Is the most significant modern means of harnessing private initiative, the business corporation, somehow carved out from the First Amendment’s religious liberty protections?

You can read Ron’s essay here.

Supreme Court Agrees to Hear For-Profit Contraception Mandate Cases

The Supreme Court has granted certiorari on two cases involving for-profit corporations which brought claims pursuant to the Constitution and the Religious Freedom Restoration Act against the federal government’s contraception mandate (which is part of the Patient Protection Affordable Care Act). The two cases that the Court agreed to hear were the Hobby Lobby case out of the Tenth Circuit and the Conestoga Wood case out of the Third Circuit.

Note that these cases solely involve the issue of for-profit corporations. They do not concern the question of the “accommodation” granted to certain religious non-profit corporations which the government has decided are not exempt from the mandate. As this breakdown indicates, the Tenth Circuit found en banc that the corporation had free exercise rights which had been violated (it did not decide the issue of the rights of the individual owners), while the Third Circuit panel rejected all claims. One last note of interest (for now): neither of these corporations is owned by Catholics. Hobby Lobby’s ownership is Evangelical, while Conestoga Wood Specialties’ ownership is Mennonite.