A Switch In Time

On May 5, 2014, the Supreme Court announced its decision in Town of Greece v. Galloway, the most prominent Establishment Clause case of this session. The punchline is that by a 5-4 vote, sectarian prayers before meetings of local governmental bodies are mostly going to be okay under the First Amendment. But there’s something a bit more important than that going on with this case.

Bear in mind what Establishment Clause law is all about. At its most rudimentary level, an Establishment case involves a person challenging the action of some unit of government on the basis that it is somehow too close to religion, or at least as often, a particular religion. Recall that the first Establishment of religion in our legal tradition is Henry VIII Establishing the Church of England. That may become important in your mind later.

And another thing to bear in mind is the First Amendment to the United States Constitution, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Most legal scholars and most judges (still including a majority of the Court) believe that the restriction on Congressional Establishment was “incorporated” to apply to the several States, and political units of those states, by way of the Fourteenth Amendment to the Constitution, in the cases like Cantwell v. Connecticut, 310 U.S. 296 (1940) and Everson v. Board of Education, 330 U.S. 1 (1947). But not all of them. That bit of knowledge will certainly be important to your understanding of today’s case, because the dispute about whether Everson either did, or could, do this is critical to the formation of today’s majority.

 

Testing Language

A long-standing point of debate amongst watchers of Establishment Clause jurisprudence has been how to test whether the Establishment Clause has been violated. Until recently, there have been three principal tests that have been used.

First, there has been the Lemon test. Until today, this was the only certain method under the law of testing whether or not a governmental Establishment of religion. In Lemon v. Kurtzman, 403 U.S. 602 (1971), a majority of the Court signed off on a three-prong test to analyze a challenged governmental activity to determine if it constitutes an Establishment of religion under the First Amendment:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster an excessive government entanglement with religion. Lemon, supra at 612-613.

If a governmental action (like enacting a statute as in Chief Justice Burger’s formulation above) fails any one of these tests, it is an Establishment, and therefore unconstitutional. The statute in Lemon dealt with Pennsylvania’s subsidy for textbooks on secular subjects given to students in religious schools, and a subsidy for the salaries of teachers who taught secular subjects in religious schools, which failed the “excessive entanglement” prong of the test because it would have required the Commonwealth to examine in some detail what the teacher was actually teaching and what the textbook actually stated. (The Lemon test was mentioned once in the eighty pages of the five opinions from Town of Greece v. Galloway — in passing, in a dissent by Justice Breyer.)

Subsequent jurisprudence gave us two different ways of looking at Establishment. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Court confronted a challenge to a municipally-sponsored Nativity scene that included a crèche. The majority of the Lynch Court found that the crèche satisfied the Lemon test as a commemoration of history and cultural tradition. But Justice O’Connor wrote a special concurrence, suggesting that the essence of Lemon, and the essence of the Establishment Clause itself, was whether or not the government was endorsing a religion. I have always found her reasoning very persuasive, even as I thought she reached a peculiar result in applying it in that case:

The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. … Focusing on institutional entanglement and on endorsement or disapproval of religion clarifies the Lemon test as an analytical device.

It’s just always seemed easier to me to understand what an “endorsement” is rather than what an “excessive entanglement” is. It’s inevitable that there will be some interaction between the government and a religious institution or people acting for religious reasons. Some entanglement is necessary: for example, the fire marshal gets to say whether there are an adequate number of fire extinguishers in the church; the church ought not to be allowed to claim a “religious exemption” to the fire code because it’s a house of worship, but it’s also a building. But the government can regulate something or act in a particular way without either endorsing or disapproving what private people might do. The fire marshal isn’t expressing an opinion about whether the church preaches the right faith or not when she issues a citation for an inadequate number of fire extinguishers.

For her part, O’Connor always considered the endorsement test to be a recapitulation, a clarification, a rephrasing, a restatement, of Lemon. But most scholars have treated it as a separate and discrete test. It was never popular with social conservatives. Still, over time, O’Connor’s idea seemed to catch on. a majority of the Court adopted it in the case of Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), a case that involved student-led prayer before a high school football game. (In exurban Houston, Texas, with all that implies about the social importance of high school football.) So I’ve considered O’Connor’s endorsement test to be good law since 2000. That is, until yesterday.

 

Coercion and Prayer

The lynchpin of many of the big Constitutional cases has been Anthony Kennedy for many years, and his was the critical vote in the case of Lee v. Weisman, 505 U.S. 577 (1992). The case involved a challenge by a student to her middle school inviting a rabbi to deliver a benediction at her graduation ceremony. Justice Kennedy initially voted that the benediction was not an Establishment, but changed his mind after reading the draft majority opinion and went on to author a majority opinion indicating that the benediction was a compulsory religious exercise, controlled and directed in its content by the school’s principal:

A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State. … Principal Lee provided Rabbi Gutterman with a copy of the “Guidelinesfor Civic Occasions,” and advised him that his prayers should be nonsectarian. Through these means the principal directed and controlled the content of the prayer. … Through these means, the principal directed and controlled the content of the prayers.

But more important was Kennedy’s finding that while “formally” voluntary, the importance of graduation ceremonies as major life events was such that attendance was not really a viable option for a student who had earned a diploma. The student’s participation in the religious benediction was therefore coerced:

One timeless lesson is that if citizens are subjected to state sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. … The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. … [T]he State, in a school setting, in effect required participation in a religious exercise.

At the time, Kennedy’s “coercion” test was met by Justice Antonin Scalia with derision, based on both historical precedent (“The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition”) and Scalia’s trademark branding of opinions differing with his as suffering from a fatal mix of vagueness, novelty, and malleability:

In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court — with nary a mention that it is doing so — lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion … Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.

Justice Scalia’s prose may be a bit purple, but he had anticipated writing the majority opinion, and he had counted on Kennedy’s vote to do it.

If you’ve noticed that in my recital of Establishment Clause tests, I’ve put a lot of emphasis on Lee v. Weisman and the coercion test articulated by Justice Kennedy, well, there’s a reason for that.

 

Legislative Prayer

Until just now, there has been exactly one case from the Supreme Court addressing the issue of a prayer as part of the agenda of a governmental body: Marsh v. Chambers, 463 U.S. 783 (1983). In Marsh, an atheist member of the Nebraska legislature challenged the practice of that body of opening its daily sessions with a nonsectarian prayer dispensed by a state-paid chaplain. This chaplain, a Methodist, made it a point to deliver “nonsectarian” prayers, referring only to “God” or “Father.”

The majority in Marsh found that prayer used to open sessions of governmental bodies doing public business had a long tradition, going back to the First Congress of the United States, which retained its first chaplain within days of introducing the text of what became the First Amendment.* Thus, the majority found that this “…unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged.”

In dissent, Justice William Brennan castigated the majority for not even trying to apply the Lemon test, and accusing it of carving out an exception to the Establishment Clause by judicial fiat: “…if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.”

Which brings us to Justice Kennedy’s recent opinion.

 

How The Town Council Prays

Greece, New York, is a town of about 100,000 people just west of Rochester, on the southern shore of Lake Ontario. For much of its recent history, its monthly meetings began with a moment of silence.

In 1999, a new town administrator, analogous to a mayor, was elected. The new administrator adopted a practice he had followed while serving as a county official: rather than observe a moment of silence, he would call upon a member of the community’s clergy in the room to deliver an oral prayer. The audience is asked to stand and listen to the prayer, which often contains explicit references to Jesus Christ (e.g., “Lord we ask you to bless us all, that everything we do here tonight will move you to welcome us one day into your kingdom as good and faithful servants. We ask this in the name of our brother Jesus. Amen.”). Then there is a brief ceremony in which he awarded the cleric a plaque identifying the cleric as the “chaplain of the month.” The cleric was initially selected informally and later a list of willing clerics (all of them Christians) who maintained a house of worship within the city limits was compiled and later used for selection. The clerics were never paid.

The “chaplains of the month” have been uniformly Christian until the plaintiffs in this case complained, and then the council invited a Jewish Rabbi and the chairman of a nearby Ba’hai Temple to deliver the invocation; a Wiccan priestess requested and was given the chance to pray before the council. According to the defendants, even an atheist would have been welcome, but no atheist ever asked to deliver the invocation. It appears but is not absolutely certain from the opinion that for all intents and purposes, only Christian houses of worship were to be found within the city limits, and the plaintiffs argued that by adoptign the practice of only inviting clerics from within the city, the city had effectively insured a “steady drumbeat” of Chris­tian prayer, unbroken by invocations from other faith traditions.

After some back-and-forth between the District Court (which thought that the prayers were like the ones in Marsh) and the Second Circuit (which thought that they violated in particular the endorsement test) the case came to the Supremes. Interestingly, the plaintiffs (through counsel) seemed to not call upon the Court to overrule Marsh outright. Rather, they tried to thread the needle of demanding that the prayers be like the ones in Marsh — which is to say, nonsectarian in nature rather than overtly Christian.

They lost. While it might seem that Justice Kennedy is the winner of the battle for doctrine here, it really looks to me like Justice Scalia ought to be smiling like the cat who swallowed the canary. To understand why, a closer look into the reasoning is necessary.

 

Meet The New Boss

Kennedy essentially buys in to the reasoning of Marsh that historical tradition suffices to render a seeming Establishment not an Establishment. Because legislative bodies have always had prayers, in other words, they can continue to do so — and this is not an Establishment Clause exception; rather, there is no Establishment at all.

Then, he indicates that the plaintiff’s requested relief — an order that the prayers in the future be nonsectarian — would actually be an Establishment, insofar as it would constitute a governmental figure telling a cleric how to pray:

The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfet­tered by what an administrator or judge considers to be nonsectarian.

Because the prayers in Greece are not demonstrably used to “proselytize,” meaning to suggest that one particular religion is the “true faith,” and because the prayers were not juxtaposed over the actual deliberations of public business, they are not Establishments because their content has thus far been “constrained”:

Thee relevant constraint derives from its place at the opening of legislative ses­sions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage. Prayer that is solemn and respectful in tone, that invites law­ makers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, 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.

As a result, these prayers are not “coercive.” Justice Kennedy insists that the proper test for Establishment is whether one is “coerced” into participating in the religious activity.

Now, I agree with the notion that once prayer is allowed at all, it’s not for the government to tell a prayergiver how to pray. This much the younger Justice Kennedy wrote in Lee v. Weisman, in which he found the most decidedly inoffensive guidelines I could imagine — basically, “keep it nonsectarian and nice in tone, and don’t sneer at other faiths” — to be an impermissible restriction on the content of speech such that the state planted its imprimatur on it and rendered a bland, pleasant blessing by a nice rabbi an unconstitutional Establishment.

Yet functionally these same “constraints” in Greece, formalized into a policy and enacted in a recurring municipal practice, are not an Establishment at all, according to the same man. In Lee, Justice Kennedy wrote that simply having to stand and be respectfully silent during an invocation to a school graduation would constitute an Establishment and violate the Constitution — but in Town of Greece, having to do the exact same thing in a town council meeting is not an Establishment and is a permissible continuation of a long historic tradition.**

The intellectual similarities of Kennedy’s opinion in Town of Greece and Burger’s opinion in Marsh are striking indeed. This makes me wonder if perhaps the plaintiffs would not have been better off going for broke and simply asking the High Court to overrule Marsh outright. It’s not like in a world where that happened there wouldn’t be prayer in public meetings — it would be like student prayer in public school now, something truly voluntary and personal to the individual seeking to pray, done either before public business got underway, or silently and in a way that did not disrupt the proceedings, and which the public entity on its own behalf would neither encourage nor prohibit. Would that really be so intolerable, even to the most devout?

 

Lemon No More?

It’s clear that a majority of the Court has just rejected the endorsement test proposed by Justice O’Connor and seemingly adopted as law in 2000. I don’t think I can call the endorsement test good law any longer. What’s more amazing is that the case of Lemon v. Kurtzman is mentioned exactly once, in Justice Breyer’s dissent. Nowhere does the majority explicitly overrule it, but the majority certainly never mentions it or attempts to apply the test in any intellectually cognizable fashion.

The year after Lee v. Weisman, Justice Scalia wrote of the moribund Lemon test:

Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and … attorneys of [litigants]. … The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, See, e.g., Aguilar v. Felton, 473 U.S. 402 (1985) (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 397-398 (1993) (Scalia, J., concurring).

Once again, it seems that Justice Scalia has killed the “monster” — only having switched his Brother Justice Kennedy over to his way of thinking, is it really, really dead this time? Today, we have only a bastardized version of the coercion test that Justice Kennedy first articulated in Lee v. Weisman, except with the definitions of its phrases filled in, and now endorsed, by the very Justice who so harshly criticized it when it was handed down. Antonin Scalia did not author any of the five opinions in Town of Greece, but his intellectual fingerprints are all over it. Somehow, he has managed to seduce Anthony Kennedy over to his way of thinking — basically only an overt command to pray or a direct tax on nonbelievers can constitute an Establishment, or so it seems. Only the “coercion” test, and that defined in a manner so narrow as to have been unrecognizable to the Lee Court, is clearly still good law.

Oh, and why does Justice Kennedy’s more recent opinion — one which so strongly resembles the Scalia dissent from Lee v. Weisman — not command a complete majority? Because Justices Scalia and Thomas have now articulated an opinion that the Establishment Clause is logically incapable of being incorporated to the States at all. According to Justice Thomas, who has apparently convinced Scalia of this opinion, nothing whatsoever stops the Town of Greece from Establishing an official religion and declaring itself a “Christian City,” or even a “Methodist City” or a “Baptist City” or whatever else a majority of its council wants. Only the political process checks against this.

Let us pray that Justice Kennedy is seduced no further by his Brethren Scalia and Thomas, for this would indeed be a scary sort of world to live in. As a practical matter, people can’t simply sell their homes, change their jobs, and move out of their communities because they happen to not be members of a locally-favored religious majority. You ought not want to live under that sort of government for many of the same reasons you ought not want to be governed by the Taliban.

The Justice Kennedy of 1992 rightly recognized that as a practical matter, students cannot but attend their graduation ceremonies, and the presence of an effectively mandatory religious invocation within those ceremonies compelled participation by nonbelievers. The Justice Kennedy of 1992 rightly noted that when a governmental entity effectively hand-selects a cleric to dispense prayer, and gives “guidelines” for what should or should not be in that prayer, the government gets its fingerprints all over the religious message and people rightly interpret this as the government telling them what they ought to believe.

The Justice Kennedy of 2014 seems not to realize that members of a disfavored minority who might have business before the local government are equally effectively coerced to participate in a religion, in the same manner as the student at the graduation who must stand and respectfully refrain from dissenting in conformity with her conscience. The Justice Kennedy of 2014 sees no Constitutional problem with a policy and practice of effectively hand-selecting clerics to dispense prayer and so long as they are “constrained” in a manner that functionally mirrors the “guidelines” condemned in 1992, proclaims that there is no Establishment problem at all.

His justification is that adults are “presumably” less “susceptible to religious indoctrination and peer pressure” than children. Thus, ceremonial prayer becomes “mere” ceremonial prayer, and an unconstitutional coercion becomes a cherished tradition. City Hall can, at least for short periods of time, become a church. One cannot help but wonder at the extent to which the fact that Justice Kennedy apparently finds the prayers in this case palatable on a personal level has influenced his decision to pronounce them congruent with the Constitution.

 

A New Attitude

The case viewed as a whole seems indicative of a powerful shift on the Court in favor of greater governmental latitude with respect to promoting religion. I hesitate to say “to the right” because it’s not quite that; “the right” does not have a monopoly on religion, and it’s not always been the case nor will it always be the case that social conservatives identify as strongly with the notion of the government participating in advancing religion in this manner as seems the case at the moment.

Consider, for instance, what would happen if the municipality in question were not Christian-majority Greece, New York, but rather Muslim-majority Dearborn, Michigan. It would be equally troublesome to see a campaign of Muslim prayers preceding the doing of public business as it is Christian prayers. So it’s entirely possible someone “on the right” might just realize that City Hall is not a church, and even if the Constitution allows this sort of prayer assisted by a public entity, that doesn’t make it a good idea. One need not be liberal or conservative to agree with the proposition that the government should be equally open to all and should send no signals to the public that any one faith is favored over any other.

And, let’s not lose perspective: the Establishment Clause is not yet as moribund as, say, the Privileges and Immunities Clause. But a switch in time changes everything: today, the ability of nearly any level of government to endorse and advance the religion favored by the political majority is much, much greater than it was the day before yesterday.

So I regret that the Court decided this case this way, that it chose to affirm rather than overrule the unprincipled decision of Marsh v. Chambers, I am particularly disappointed in Justice Kennedy in whom I had previously placed high hopes for seeing the need to limit governmental activity of this nature, and I hope that at some future date, the Justices will see fit to correct the dangerous course upon which they have placed the law.

 

* Many credit James Madison with doing this himself and therefore endorsing Congressional chaplaincies, although his private papers indicate that Madison personally objected to the hiring of a chaplain. Query how much that matters; Big Jemmy only had one vote, same as any other member of the House, and there’s no doubt that the House did indeed vote to hire a chaplain, and Congress has had at least two chaplains on the public payroll almost continuously since the 1790’s (there has never been a non-Christian chaplain for either house of Congress, by the way).

** A long historical tradition which, for the town of Greece, New York, started in 1999.

 

Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.