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Yesterday, in Town of Greece v. Galloway, a 5-4 majority of the Supreme Court upheld ceremonial prayers at the start of a town’s board meetings, as noted in Adam’s earlier post. Two thoughts occurred to me while reading the decision.
First, I continue to be impressed at how much effort both sides put into fighting over simple, symbolic signs of religion that do not come remotely close to running afoul of the Establishment Clause. It is hard to believe that the Town of Greece — or any of the many cities and states that have been sued over similar religious symbolism — is trying to found a mandatory state religion of the kind commonly seen in Europe.
Mandatory school prayer and religion classes in public schools are one thing, but the mere mention of god or voluntary prayers that rotate among many faiths is another. Those who worry about the place of religion in public life should focus more effort on the broader decline of morality in society rather than fighting about symbolic speech on government property. Those who see a state-run church behind every symbol should devote their own energies to some other (serious) constitutional problem, such as real restrictions on speech and political organization by the government.
Second, careful Court watchers will notice an important shift in the voting. The decision here did not break as cleanly along the traditional 5-4 conservative-liberal split as you’d think if you only knew that the majority was made up of Robert, Alito, Scalia, Thomas, and Kennedy. Instead, Chief Justice John Roberts and Justice Samuel Alito voted with Justice Kennedy’s opinion applying the “coercion” test. First appearing in a 1992 case, Lee v. Weisman, this invention of Justice Kennedy’s finds an Establishment Clause violation when the government somehow “pressures” people to engage in a religious observance.
Conservative legal scholars have criticized the coercion test because it seems to turn on the psychological feelings of people in an audience — a subjective factor all too easily manipulated by judges to reach the outcomes that they’d prefer anyway. Surprisingly, both Roberts and Alito joined Kennedy’s use of the coercion test, despite its many problems. Perhaps they are trying to win Kennedy back to the conservative fold after all the years he’s spent playing footsie with the left. If so, it’s not worth it — as Justices Antonin Scalia and Clarence Thomas recognized by not joining Kennedy’s opinion on the matter of the coercion test.