A great opinion by Justice Kagan

Sandy Levinson

Today's opinion in the Town of Greece case is another dismaying example of extraordinarily wooden thinking by what NPR a moment ago described as "the conservative majority" of the Supreme Court.   

But, as with the Arizona election finance case a couple of years ago, it elicited a truly great dissent from Justice Elena Kagan, worthy of inclusion in the canon that includes Justice Jackson's magnificent opinion in Barnett.  Also as in that Arizona opinion, Justice Kagan writes a wonderfully accessible prose that should be read by newspaper editorial writers, ordinary citizens, and, ultimately, by youngsters in civics courses trying to wrestle with the meaning of e pluribus unum.  From my perspective, she leaves the majority's opinion (written by Justice Kennedy) in absolute shreds by pointing out the degree to which they wish to discuss the facts of the earlier case that upheld legislative prayer in Marsh v. Chambers (which she didn't challenge) and patently ignore the facts of what was going on in Greece.  Consider for starters only that, month after month, highly sectarian Christian ministers, with their backs to the legislators, called upon the audience to join in highly sectarian prayers.  No one looking at the totality of the Town's practices over the past decade could possibly believe that non-Christians are truly considered full members of the Town of Greece political community, as distinguished from Others to be "tolerated" by a superior majority,.  This social fact is not changed by the fact (or factoid) that on a grand total of four occasions, non-Christians (two Jews, a Baha'i, and a Wiccan), under the pressure of the litigation, were in fact invited (or, perhaps more accurately, "allowed" upon their initiation (especially the Wiccan), to give the prayers.  The majority is either incapable of understanding this or is, even worse, simply indifferent.  Were this a libel case, they would fall under the "reckless disregard" branch of the N.Y. Times test. 

In the unforgiveable opinion in Shelby County (where it was Justice Ginsburg who wrote the great dissent), the majority licensed Republican majorities in states across the country to pass ruthless voter-suppression legislation. (Did they intend this?  Who knows, and who cares.  Reckless indifference can still subject ordinary people to liability.)  The majority has now licensed sectarian groups in every small town in the country to implore their city councils, at pain of electoral retribution, to arrange for sectarian prayers to be offered with regularity that re directed at those citizens who want to show up, say, to petition their government for redress or grievances or even to ask for a zoning variance.  This awful opinion does little more than invite an ever-more-bitter culture war between the highly sectarian and all of those religious believers, often referred to contemptuously by some today as "mainstream religions," who in fact can live with instructions, say, to face the legislators and to offer inclusive prayers tht don't require the coerced participants to cringe as the "chaplain of the month" speaks in the name of "our Savior." In a country where all too many candidates run on the basis of their being committed Christians, it will take strong city leaders indeed to resist the pressures that the Supreme Court has licensed.   (Of course it's possible that secularists will organize and demand their place at the podium.  Not only do I suspect this is unlikely to happen, but I also doubt that it would in fact bring greater peace to the culture wars.)

I rarely recommend that non-lawyers read Supreme Court opinions (and, if truth be known, even that lawyers necessary do so, unless they have to for professional purposes).  Justice Kagan's opinion is a wonderful exception.   She offers a vision of America--and of the "privileges and immunities" of Ameircan citizenship, drawing on George Washington's famous letter to the Jews of Newport--that we should all embrace.

Her opinion begins as follows:

For centuries now, people have come to this countryfrom every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will countas full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.

I respectfully dissent from the Court’s opinion because Ithink the Town of Greece’s prayer practices violate that norm of religious equality—the breathtakingly generous constitutional idea that our public institutions belong noless to the Buddhist or Hindu than to the Methodist or Episcopalian. I do not contend that principle translates here into a bright separationist line. To the contrary, I agree with the Court’s decision in Marsh v. Chambers, 463 U. S. 783 (1983), upholding the Nebraska Legislature’s tradition of beginning each session with a chaplain’s prayer.And I believe that pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality; such a forum need not become a religion-free zone. But still, the Town of Greece should lose this case. The practice at issue here differs from the one sustained in Marsh because Greece’s town meetings involve participation by ordinary citizens, and the invocations given—directly to those citizens—were predominantly sectarian in content. Still more, Greece’s Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any wayreach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that everycitizen, irrespective of her religion, owns an equal share in her government.
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Posted 5:48 PM by Sandy Levinson [link]