Misguided Priorities on First Amendment Fights

 

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.

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  1. Tuck Member
    Tuck
    @Tuck

    “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.”

    When you’re attacked, you need to defend yourself.  You can’t continuously surrender and expect to win…

    And the priorities of the plaintiffs are all too obvious.

    • #1
  2. user_86050 Member
    user_86050
    @KCMulville

    Or as Buckley used to say, while everyone else is at prayer, let the atheist students dream about sex.

    • #2
  3. TG Thatcher
    TG
    @TG

    Tuck:

    “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.”

    When you’re attacked, you need to defend yourself. You can’t continuously surrender and expect to win…

    And the priorities of the plaintiffs are all too obvious.

    Tuck said it.  Who *wants* to have to fight to be able to speak, aloud, a simple traditional invocation?

    • #3
  4. MarciN Member
    MarciN
    @MarciN

    I’m not sure I understand Mr. Yoo’s points here.  But this is the crux of the problem for conservatives:

    “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.”

    In other words, the sentiment expressed here is the reason conservatives spend so much time pushing back on these attempts to squelch free speech.  

    I used to think the school prayer issue was ridiculous.  What a joke.  So many real problems need to be solved.  What is the big deal.  Who needs to pray in school anyway?  

    Now I get it, what the pro-school prayer people were concerned about.  They weren’t as stupid as the press made them seem.  They saw this coming: “but the mere mention of god or voluntary prayers that rotate among many faiths is another.”  And it is going to get worse.   

    • #4

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