SCOTUS Decision on Legislative Prayer Doesn’t Go Far Enough—Adam Freedman

 

Yesterday was a good day for religious liberty at the Supreme Court, where five justices beat back an attempt to declare prayers at town meetings unconstitutional. It could have been a great day, however, if only the Court had accepted Justice Thomas’ invitation to declare the Establishment Clause completely inapplicable to state and local governments. But I’ll get to that in a minute.

The decision in Town of Greece v Galloway  involved a small city in upstate New York (Greece) in which town board meetings open with a roll call, a recitation of the Pledge of Allegiance, and – brace yourself – a prayer given by a rotating selection of local clergymen. Two town residents sued, arguing that the predominately Christian nature of the prayers (reflecting the composition of the local clergy) violated the First Amendment’s Establishment Clause. The Court’s liberal bloc (Breyer, Ginsburg, Sotomayor, and Kagan) would have banned the town’s prayer tradition, relying on a dominant theory in many earlier cases that the First Amendment prohibits any government action that might appear to “endorse” religion. 

 The majority opinion, written by Justice Kennedy, rejected the “endorsement” theory and instead voted that state action like legislative prayer does not violate the Establishment Clause unless the state is actually coercing citizens to adopt a particular religious belief. This is very welcome news. The “endorsement” test has been nothing but a roving license for anti-religious zealots to roam the countryside filing lawsuits every time they see a cross or a crèche on public property.  

Endorsement is a fuzzy concept. In theory, the legal question is whether the state has endorsed religion in the eyes of a “reasonable observer,” which in practice means an observer with precisely the sensibilities of the life-tenured federal judge hearing the case. Coercion is a stronger standard that allows state and municipal governments to accommodate religious beliefs.

That’s the good news. The bad news is that “coercion” also has fuzzy edges. For example, the Court has previously held that a religious benediction at a high school graduation ceremony might coerce the students, in light of their tender age. Kennedy’s opinion did not renounce that earlier decision (although the Court might revisit that issue soon in a separate case). In any event, Kennedy’s decision sets up Establishment Clause jurisprudence as a “fact-sensitive inquiry” in which the Court has to balance lots of different factors. And whenever the Supreme Court creates a multi-factor balancing test, it amounts to an invitation to the lower courts to make it up as they go along. 

There was a simpler way to reach the majority’s result, and one more faithful to the Constitution: the Court should have ruled that the Establishment Clause does not apply to state and municipal governments, period. As Justice Thomas points out in a separate concurrence (joined only by Scalia), the Establishment Clause is about state’s rights, not individual rights.  

“Congress shall make no law respecting an establishment of religion.” Not simply that Congress shall not itself establish a national religion, but that it will not make any law having anything to do with religious establishments. When the Bill of Rights was proposed in 1789, at least six states had established churches, other states gave aid to all protestant churches, and some states had no state support for churches. The point of the Establishment Clause was to preserve the existing autonomy – Massachusetts wanted its established church and Pennsylvania wanted its secular state — without any interference from Congress. It was not until the 1940s that the Supreme Court suddenly discovered that the Establishment Clause had been “incorporated” into the 14th Amendment – something that had escaped everyone’s notice for 70 years. 

It is, of course, nonsensical to apply the Establishment Clause against the states. The whole point was to liberate the states from federal interference in religious matters.  You might as well say that the Tenth Amendment applies against the states. Establishment Clause jurisprudence has been a mess, and will continue to be a mess until the Court faces up to the fact that the Clause was never intended to provide an individual right to be free from religion.  The Founders would have been appalled by the idea.

There are 12 comments.

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  1. user_1938 Member
    user_1938
    @AaronMiller

    Good point about the distinction between the national government and local governments. I hadn’t considered that in relation to the 1st Amendment. 

    I can’t cheer this ruling, because half of the highest judges in the land effectively claimed that the writers of the Constitution themselves were mistaken about the meaning of the Constitution. It’s such an obviously and willfully ridiculous proposition that by itself it should be grounds for dismissal from their posts. Yet they will certainly remain. So much for law in America.

    It’s good to see you here again, Adam. Don’t be a stranger!

    • #1
  2. Adam Freedman Contributor
    Adam Freedman
    @AdamFreedman

    Thanks Aaron!  Yes, I’m sorry I haven’t been posting lately.   The reason for my absence is that I’ve been working furiously to finish my next book — on state’s rights!   I’m getting closer to the finish line on the manuscript, so I’m hoping you’ll see a lot more of me soon.

    • #2
  3. Adam Freedman Contributor
    Adam Freedman
    @AdamFreedman

    Oh, and by the way – I agree with Aaron that the ruling is distressing in what it reveals about the anti-religious bias of the four liberal justices.   For them, the First Amendment is about freedom from religion; exactly the opposite of what the Framers envisioned.

    Alas, we’ve also seen plenty of anti-Catholic bigotry from the media, as it immediately became a standard line to suggest that the majority was motivated by their Catholic beliefs rather than their legal philosophy.

    • #3
  4. Son of Spengler Contributor
    Son of Spengler
    @SonofSpengler

    But wouldn’t such a ruling undo the incorporation doctrine, radically overturning precedent on the Fourteenth Amendment as well as the First? Did Justice Thomas address this in his concurrence as well?

    • #4
  5. user_86050 Member
    user_86050
    @KCMulville

    If my mentioning religion makes you feel oppressed … Catholic! Anglican! Lutheran! Orthodox! Jewish! Baptist! Hindu! 

    I can’t see how anyone would believe that the mere expression of a religious doctrine or belief is, by itself, menacing and threatening of oppression. After all, expression isn’t oppression. We incarnate that distinction into the first amendment.

    Ah, yes, but what if a government official expresses it? Doesn’t that change the context, and add the threat? No. It doesn’t. 

    After all, when we think about the First Amendment, we immediately grasp the distinction between beliefs and actions. We never assume, for individuals, that coercive actions must necessarily follow expressions of belief. One does not necessarily lead to the other. If I say that the Dallas Cowboys are a bunch of jerks, that by itself isn’t evidence that I plan some sort of violence against them. The expression itself isn’t evidence.

    On the other hand, to argue that all public and official expressions about religion are necessarily oppressive, you have to assert that expression is indeed evidence. That’s the “leap of faith” (irony intended) that anti-religious expression people want you to make.

    • #5
  6. Adam Freedman Contributor
    Adam Freedman
    @AdamFreedman

    It would not undo incorporation in general; it would simply exclude the Establishment Clause from the doctrine.  It’s judge-made, so the courts can decide which provisions of the Bill of Rights are incorporated — just as the courts exclude the 10th Amendment from Incorporation.

    However, if I could wave a magic wand, I would overturn the doctrine of incorporation.   The due process clause of the 14th amendment (like the DP clause of the 5th amendment) is about procedural fairness, not substantive rights.  Nobody in 1868 understood the due process clause of the 14th amendment as a guarantee of substantive rights — that work was supposed to be done by the “Privileges or Immunities Clause.”  But the Supreme Court gutted the P or I clause in the Slaughterhouse Cases, leaving future courts to try to shoehorn substantive guarantees into the due process clause.

    • #6
  7. jmelvin Member
    jmelvin
    @jmelvin

    Thanks for the informative post.  I have yet to read through the decision on my own, but as you suggest, it would seem that Justice Thomas had the right thoughts with regard to the originality of the US Constitution.

    • #7
  8. user_517406 Member
    user_517406
    @MerinaSmith

    It seems to me that the point ought to be freedom for religion.  It’s ridiculous, however, to say that the realm of belief and ethics should have nothing to do with the public square.  In other words, it’s impossible to separate belief from public policy per se, and efforts to do so only lead to silly rulings that allow a creche in the town green so long as Frosty the Snowman stands beside.  Public policy needs to give space to belief so that government policies do not impinge on conscience.  The Hobby Lobby case is a perfect example.  Let’s hope and pray this ruling bodes well for the decision in that case.  But I agree that in this, as in most other things, federalism is the answer.

    • #8
  9. Gary The Ex-Donk Member
    Gary The Ex-Donk
    @

    This probably the best you could hope from Justice Kennedy who, after all, was the fifth vote.

    • #9
  10. Carey J. Member
    Carey J.
    @CareyJ

    Adam Freedman:

    It would not undo incorporation in general; it would simply exclude the Establishment Clause from the doctrine. It’s judge-made, so the courts can decide which provisions of the Bill of Rights are incorporated — just as the courts exclude the 10th Amendment from Incorporation.

    However, if I could wave a magic wand, I would overturn the doctrine of incorporation. The due process clause of the 14th amendment (like the DP clause of the 5th amendment) is about procedural fairness, not substantive rights. Nobody in 1868 understood the due process clause of the 14th amendment as a guarantee of substantive rights — that work was supposed to be done by the “Privileges or Immunities Clause.” But the Supreme Court gutted the P or I clause in the Slaughterhouse Cases, leaving future courts to try to shoehorn substantive guarantees into the due process clause.

     I rather like incorporation, particularly where the First Amendment is concerned. The notion that state governments could enact restrictions on free speech and religious liberty is utterly unappealing to me. Considering the makeup of some state legislatures, it should be unappealing to anyone.

    • #10
  11. Adam Freedman Contributor
    Adam Freedman
    @AdamFreedman

    If the Privileges or Immunities Clause had not been eviscerated by the Court, that would have provided a guarantee against state infringement of free speech & free exercise.   In any event, every state constitution has its own bill of rights included First Amendment equivalents that can be enforced by state judges.  Generally speaking, citizens don’t need federal enforcement of individual rights.  States can — and do — perform that task.

    • #11
  12. tabula rasa Member
    tabula rasa
    @tabularasa

    Adam Freedman:

    If the Privileges or Immunities Clause had not been eviscerated by the Court, that would have provided a guarantee against state infringement of free speech & free exercise. In any event, every state constitution has its own bill of rights included First Amendment equivalents that can be enforced by state judges. Generally speaking, citizens don’t need federal enforcement of individual rights. States can — and do — perform that task.

    Excellent point.  Sadly the feds believe that if they aren’t in charge we’ll be burning witches and engaging in forced baptisms.  And the left loves to believe those things, and worse, will happen. 

    • #12

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