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Tuesday, May 06, 2014

Noah Feldman's Endorsement of the Town of Greece Decision

Rick Pildes

As critical academic commentary on this blog of the Court's Town of Greece decision quickly mounts this morning, I thought readers might be an interested in a different view from a well-known liberal and expert on the religion clauses, my former colleague, Noah Feldman.  For his full piece, see here.

Noah explains that Justice Kennedy's plurality opinion rests on the principle, which Noah embraces, that only governmental "coercion" of religious beliefs or practices should violate the First Amendment and that prayers that begin town meetings do not, in his view, entail coercion.  As Noah explains:  
Next, in a portion of the opinion that commanded only a plurality, Kennedy applied his own favored establishment clause test -- whether the government action coerced anyone to participate in religious activity against his or her will, even subtly. (Disclosure: I’ve also written extensively in favor of coercion as an establishment clause test, alongside a prohibition on government expenditure of funds, and Kennedy cited my work in his opinion.) 
Moreover, Noah argues that the decision is right because the dissent's approach would be, not only a disturbing one for courts to apply, but also a dangerous one.  So he concludes that while the dissent's approach might be a good model for the state to follow, it is not and should not be a constitutional requirement:
If the town of Greece wants to open its council meetings with prayers, it really should be inclusive. But Kennedy’s plurality opinion got it right. So long as no one is coerced, inclusiveness is a political virtue -- but not a constitutional requirement.

Comments:

I think this is a great point. Liberals protest too much against the "Christian country" argument. Yes, a couple Founders were Diests, but there had been two Great Awakenings before the country had even had breakfast and western expansion was conceptualized in Christian terms by Christians going to tent revivals in a country that was 99% Christian. It is also such a misplaced priority. ACLU lawyers should be fighting more important battles.
 

Yeah, all those Jews, Muslims, atheists, Hindus, Scientologists, etc. should just quit their f*cking whining and get with the One True (and State-Approved) Religion, right TH?

 

Coercion , like proselytizing, may be in the eye of the beholder or the beholden. If one appears before a town council seeking some form of relief or justice, he/she may have to swallow his or her perceived coercion with a prayer that may offend him/her because of a difference in faith or humanist principles. Can he/she in some fashion protest and expect to receive the relief or justice being sought before the Council? Or should he/she silently swallow and go along to get along?

Perhaps Rick and Noah can provide their meaning of coercion in this instance.


 

The dissent didn't oppose "inclusion," but the practice in question didn't do a great job promoting it. Not much of an effort was really made to truly make it inclusive. The result, even granting the coercion rule (which is a bit weak), as Kagan showed and Prof. Feldman patently failed to address, is coercive.

That is, if we fully care about those who don't follow the sort of mainstream religion the majority opinion assumes. Its very concern for non-disparagement, e.g., would make even quoting lots of verses of the Bible a problem. Query if a prayer assuming Jesus is the Savior and "we" should honor him "disparages" dissenters?
 

Like Shag, I'm not so sure that it's right to think there was not coercion here, and think it's frankly implausible that there's not, at least, "subtle coercion."

My understanding is that this wasn't just a business meeting, but one where people had to go to ask for various forms of relief, for licenses and other government benefits. If the (obviously all Christian) council members want to open w/ a prayer, one where people are "encouraged" to take part, and you then need to ask these same people, who were in the same small room, and who obviously take this stuff seriously, to grant you some benefit, it seems quite implausible to me that this doesn't exercise at least "subtle coercion", and arguably more than that. If Feldman doesn't think this is at least plausible, I would venture that he's not thinking through the issue clearly.
 

The language of tolerance and oppression often overstates the case of the experience of religious minorities. Would a black man feel comfortable petitioning an upstate New York town councils for a redress of grievances? You folks are saying that the constitution is more concerned about how a Jewish person would feel?
 

They can whine all they want. But doesn't the ACLU have some real problems to care about. Like say, NYPDs inability to understand the 4A.
 

If the opening of the Bill of Rights (pushed in significant part by Baptists -- btw often it is non-liberals complaining in a religious freedom case) is not worthwhile, perhaps it's the placement. Might confuse people.

Unclear why generally speaking a "black" person would particularly be uncomfortable petitioning in upstate NY as a whole. It is not exactly a whites only zone or something.

The ACLU has the resources to promote multiple amendments.
 

You wrote:
"It's not exactly a white's only zone or something."

This perfectly demonstrates my point. People think rich white people (Jews and atheists) face coercion when a local yahoo opens a meeting with a mention of "Jesus Christ" but are utterly, totally, and immorally blind to the reality of white supremacy in America.

Rural upstate New York is, indeed, a "white's only zone" as a matter of empirical fact and the coercion black people might face at a town hall meeting is far from "subtle".
 

TH doesn't regularly post here so I'm not sure how to take his statement that implies only rich white people are Jews or atheists.

I might have been punked or something. But, this subject is pretty seriously, so you know, enough.
 

Straw man alert: "only"!

http://www.pewforum.org/2009/01/30/income-distribution-within-us-religious-groups/
 

I may be new here, but I'm a lawyer who spent 5 years as a public defender. The First Amendment is a trap that captures many of our intellectual elites for several reasons, including the fact that public information about the Courts is provided exclusively by people who think Judy Miller and Matt Cooper are heros.

School children forced to volunteer to their peers that they are a "weird" religious minority: the harm is real.

Even for adults, the "otherness" of religious minorities is a real thing. But that's true of every single person who holds a minority viewpoint of one kind or another. The marginal harm of local yahoos leading prayers is infintesimal compared to the harms caused by the non-subtle violation of civil liberties by our militarized police force.
 

"It is also such a misplaced priority. ACLU lawyers should be fighting more important battles."

The ACLU defends Nazis, the KKK, and drag queens, so without being more blunt than necessary, Mr Hall, Fuck you. The same for Noah Feldman.

 

Claims of racism have become something of a verbal tic on the left, and "subtle" is little more than an admission that there's no real evidence, maybe just statistical inferences based on absurd assumptions of statistical equality were there not racism.

People will never lack for reasons to be offended. Mere offense can not rise to the level of constitutional import, because it's inevitable. People will be offended by a prayer, people will be offended by the lack of one.

Ask a member of the Anglican church what an established religion is. It's rather more than just inviting somebody to say a prayer.
 

Racism is the tick [sic] that Brett demonstrates he's made of.
 

E.J. Dionne, Jr.'s WaPo column today "The Supreme Court fails the empathy test" lays out well the dissents by both Justices Kagan and Breyer.

Perhaps The Town of Greece plurality opinion will inspire songwriters to come up with a musical, sort of a revival of "Grease," focusing upon the different faiths - and non-faiths - in a small town in upstate New York. This could be bigger than "The Book of Mormon" and just might influence 2016 elections as it may have in 2012.
 

Mark Tushnet's 5/7/14 post reminded me of the essay by Jack Balkin and Sand Levinson on the "facts" of Marbury v. Madison as part of a bi-centennial on that 1803 decision appearing in Constitutional Commentary. The "facts" in Town of Grece need to be laid out in full as opposed to the the stress in Justice Kennedy's plurality opinion for the Court on "ceremonial." Jack and Sandy, go to it.
 

There are a variety of clauses getting conflated here, and I started it by talking about a whole other amendment, but I think it's important to be clear about the distinction between the plaitiff and the principle. Obviously, the ACLU defines it's mission as protecting liberty, not people.

On their own terms, finite resources suggest that they should attack the most significant threats to liberty that are least likely to have a champion.
But we should be aware that errors of various kinds will sometimes the ACLU's pursuit of "liberty" will make the world a worse place.
One obvious error is blind faith in the proposition that good things rise to the top of the "marketplace of ideas."
Another is the fact that the people lawyers and justices feel empathy for are not necessarily those in need of any relief.
 

"But doesn't the ACLU have some real problems to care about. "

Ever considered that perhaps the ACLU tries to fight the slippery slope taking us back to the 'real problems' of serious government establishment of religion and religious bigotry? That is, the very fact that you think we do not have many 'real problems' in that area is because of their tireless policing of the edges of that issue?
 

The ACLU is not a libertarian organization. I repeat too often that one of it's early leaders called it conservative, defending civil liberties and the rule of law. The rule of law is not freedom. They used to refuse second amendment cases on principle, because the text is unclear.

Feldman tries to be a conciliator from above. He tried to build a democracy after destroying a state, and Iraq is still a US made disaster. Now he condescends in the same way to an existing republic, weakening it.

I'm not always in favor of bringing church state cases. You're right sometimes -sometimes- the trouble's not worth it. But now that the case was brought you're defending the decision. And your earnest concern trolling, like Kennedy's, is as much of an insult to the Constitution and the people of the United States as Scalia flicking the back of his hand under his chin.
 

"They used to refuse second amendment cases on principle, because the text is unclear."

According to Ira Glasser, who was the speaker at a supper club I attended in the mid 80's, it wasn't anything to do with the Second amendment being "unclear". He came right out and said that the ACLU's donor base hated the 2nd amendment, favored gun control, and would desert the organization if it dared to defend gun ownership. And how, he asked, could the ACLU defend the rest of the Bill of Rights, if it had no funding?

Everything after that is just rationalization. The 2nd amendment was a civil liberty too unpopular with the left for the ACLU to dare, or to stomach, defending.
 

This comment has been removed by the author.
 

But as always, you ignore words. The ACLU took no side one way or the other. But yes, times have changed and the ACLU has gone downhill. I doubt they'd defend the Nazis' right to march in Skokie these days. Something to do with "triggers" "trigger warnings" and PTSD.
Stupid.

Adults to demanding to be treated as children. Sad
 

Brett, given the ACLU has, for example, represented Nazis and Klansmen and aggressively sued left political figures like President Obama, is it possible that you misheard or misinterpreted Mr. Glasser's comments that night (or he mispoke)? It would seem strange to think the ACLU's donor base hates the NRA more than it does the KKK.
 

"But yes, times have changed and the ACLU has gone downhill. I doubt they'd defend the Nazis' right to march in Skokie these days."

A quick google search revealed this story from just a few years ago:

"A Missouri city is being sued by the Ku Klux Klan for the right to distribute racist literature by placing handbills onto the windshields of parked vehicles. And guess who is representing the white supremacists in court? The American Civil Liberties Union – one of the oldest human right defending organizations in the US – has come to the aid of one of the oldest and most notorious American racist groups. "

http://rt.com/usa/american-court-kkk-missouri-830/
 

"Mere offense can not rise to the level of constitutional import"

I agree, which is why I think the test should be endorsement. It is hard to say that in inviting and participating in prayers at their meetings the town council is not endorsing religious activity and ideas.

If a town council had 'All Goodness We Owe to You, Oh Allah' inscribed at the entry of all city buildings I bet a lot of people would see it as endorsing a religion and as a problem. How is this different?
 

Here's a link:

http://cdn.preterhuman.net/texts/politics/GUNS/2nd_aclu

to the ACLU on the 2nd A.
 

"The ACLU took no side one way or the other."

Utter BS. The ACLU's justification for not defending the Second amendment was that the gun grabbers' sophistries about it's meaning were true. That's not a neutral stance. That's lending aid and comfort to the 2nd amendment's enemies.

They could have said, "The 2nd amendment is adequately defended by the NRA." But they wanted two incompatible things: To claim that they defend the entire Bill of Rights, and to not defend the entire Bill of Rights.

That logical contradiction led directly to Nadine Strossen's eventual declaration that "civil liberties" simply means whatever the ACLU feels like defending, and really has nothing to do with the Bill of Rights.

IMO, the ACLU defends the KKK and Westboro because they love defending speech that makes the right look bad. If they thought it would be persuasive?

They'd give up on defending it, just like they've quietly given up on defending political speech against the campaign censors of the left.
 

Brett's:

"IMO, the ACLU defends the KKK and Westboro because they love defending speech that makes the right look bad. If they thought it would be persuasive?"

may be suggesting that the "right" may have supported the KKK but played the Southern Strategy without directly supporting the KKK on 1st A - or other? - grounds. Does Brett think the "right" would have "looked god" had it actively supported the KKK?
 

Shag et. al. might be interested in a discussion on the 2A over at ACS Blog. Prof. Levinson's entry can be found here:

http://www.acslaw.org/acsblog/making-peace-with-the-second-amendment

As to the subject at hand, protecting the rights of minorities is a pretty important thing, including religious minorities.

For instance, Muslims have suffered some discrimination in recent years, and a significant number of let's say blacks are Muslim. The mind-set that does not make a half-decent effort here for inclusion etc. is part of a wider whole.

This is seen in religious cases overall that repeatedly are also free speech cases, e.g. And, for many, religion is very important thing. It is not a trivial matter. I'd note too that Baptists were the original separationists. This is not merely not "liberal" thing.

 

Brett,
"A well regulated militia"
My mother ran an ACLU panel during the Vietnam war on the rights of the enlisted. She worked with JAGs. The ACLU helped get Oliver North off on double jeopardy.
You're a fucking idiot. Shut up
 

Joe,
Thanks for the link to Sandy's article I printed it and plan to read it later this morning, in addition to Tony Mauro's Legal Times article (5/8/14) "New Study Revisits Scalia-Posner Feud" to which a link is provided at lawcom.

CORRECTION: In my prior comment I noted my sectarian slip "looked god" that was intended to be a secular "looked good." Sorry, the "eyes" don't always have it.
 

I give Douglas Laycock a loud secular "AMEN!" for his 5/9/14 post "A return to Mere Toleration?" on the Town of Greece plurality opinion detailing what some of us, especially Joe, have had to say on the subject.
 

This comment has been removed by the author.
 

I too appreciate his comment (even without comments) but do understand the concern about those who think non-theists were given a cold shoulder.

The oral argument, which is available online, was blatant here. The idea of a non-theistic prayer was seen as some kind of joke and even the lawyer for the challengers (one who is an atheist) basically conceded we can just worry about theists here.

But, an atheist legislator recently DID give an opening invocation. It's you know POSSIBLE and all. It has the same general value -- start the day with a moment of contemplation and insight, honoring the different beliefs of the community in the process. It also can be a means to remember that there is something more important than merely ourselves, though some people's "ultimate concern" is not theistic based.

That is the thing asked for here -- not that each and every prayer would please everyone. Though, yes, even the plurality admitted unlike a church or something, there was a limit on content here. Since it is a governmental event that should be inclusive.

We can take a broad based position here, and like the lawsuit that just failed about 'under God' (see Huffington Post), first principles can be cited. But, a middle ground is possible too.

This is not an open mike night or something. The government here expressly set up a regime meant to cover everyone. Like not liking the death penalty but at least not doing a FUBAR when trying to kill someone, the town should have lost without needing to throw the baby out with the bathwater.
 

Mista Whiskas,

Glad to hear it. Thanks


 

In order to establish a particular Religion, Congress must first pass a Law respecting the establishment of that particular Religion; respecting a particular tenet or tenets of Faith, is not the same as establishing a Religion.

It is only logical to assume that respecting those tenets of Faith that are consistent with our founding Judeo-Christian principles, serves to complement and thus enhance The Common Good.
 

You will know if Congress was attempting to pass a Law respecting an establishment of religion:

http://kids.clerk.house.gov/grade-school/lesson.html?intID=17
 

In order to establish a particular Religion, Congress must first pass a Law respecting the establishment of that particular Religion; respecting a particular tenet or tenets of Faith, is not the same as establishing a Religion.

The matter at hand is the 14A, since a state is involved:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

First, there was a form of "law" setting up the practice here. Second, "enforce" and "deny" go further than enacting new laws. This would include enforcing old laws in a certain way.

It is only logical to assume that respecting those tenets of Faith that are consistent with our founding Judeo-Christian principles, serves to complement and thus enhance The Common Good.

"Our" principles are not "Judeo-Christian." One need not think Jesus saved us from our sins or that Jews were the chosen people to honor "our founding principles."

At best, there might be "deistic" principles given "God" is mentioned in the Declaration of Independence. But, "render to Caesar" etc. even belief in Jesus Christ etc. does necessarily justify this practice.

In fact, Jesus in the gospels criticized public prayer. As I noted to you elsewhere, I do believe you are the same "Nancy," that part is ironic.
 

"In order to establish a particular Religion, Congress must first pass a Law respecting the establishment of that particular Religion; respecting a particular tenet or tenets of Faith, is not the same as establishing a Religion."

In the 1st amendment context, I believe "respecting" an establishment of religion refers not to laws expressing "respect" towards an establishment of religion, but, rather, laws having to do with an establishmemt of religion.

Some states at the time had established churches, some did not. The federal government was to just utterly leave the topic alone, enact no law having to do with it at all.
 

First off, Of what actual importance does "prayer" have at the beginning of any meeting. Anyone who has spent countless hours in meetings knows that it is utterly pointless. Proponents seem to suggest it will prevent a knife fight or something from breaking out.

I don't know it's history but it's not hard to understand that is an exersize in exclusivity. It is a function of priming. It primes the atmospher and tone of a meeting before it even starts. It sets the stage of "this is a Christian meeting" now you deal with it.

Liberals should keep bitching until the practice is only a memory. Why not just open the meeting with a "hello"?

What Christians don't realize in their complaint of "under attack" is that Christians already have preeminence, precidence, and presumption. They already have overwhelming power and when another mind wants a little room, or wants a neutral playing field they feel wholly threatened.
 

I don't think a moment of contemplation of some sort before the day started is a waste in this context. It need not be "Christian" which seems to be the assumption of the plurality, at least de facto.

A few people noted what happened when a non-Christian gave the invocation in Congress a few years back. The heckler is telling: his involvement sent an inclusive message that rejects that "we" are a Judeo-Christian nation as an official matter.

It's fine to "bitch" as long as it is "Christian," but not really sure if something more than a "hello" would be a bad idea. At least, if the locality could handle it the right way.
 

If you need an invocation to run a meeting, then which? If you need a moment of contemplation, then how?

Meeting studies show that the first mouth and the biggest set the mind and push other ideas away. It's human nature, how the brain works, it's not conscious submission. So an invocation is the first mouth to speak so don't tell me it has no impact.

"If" you need something to cool the jets before a meeting then how bout a mandated reading of affirmative words...just the words...like justice, fairness, rule of law, sharing, puppy dogs...you get the pic.

Studies show that just thinking about words sets the mind...it's called priming. Why not prime for cooperation...instead of pray for salvation of the flavor of believer?
 

If you need an invocation to run a meeting, then which? If you need a moment of contemplation, then how?

A range of ones would be the ideal. The "how" would be as inclusive as possible.

Meeting studies show that the first mouth and the biggest set the mind and push other ideas away. It's human nature, how the brain works, it's not conscious submission. So an invocation is the first mouth to speak so don't tell me it has no impact.

Who is saying "it has no impact"? If it had "no impact," why would I suggest it might be ideal to have something?

"If" you need something to cool the jets before a meeting then how bout a mandated reading of affirmative words...just the words...like justice, fairness, rule of law, sharing, puppy dogs...you get the pic.

Doesn't sound like that much different than some prayers, which need not necessarily be addressed a deity. That's possible though. I'm sure some "affirmations" will cause some dissention though.

Studies show that just thinking about words sets the mind...it's called priming. Why not prime for cooperation...instead of pray for salvation of the flavor of believer?

Sounds like more than a "hello" might be useful. Anyway, that's the point here -- need to have a truly inclusive practice, not just favoring like here a specific flavor of believer. Have a range of speakers and views.
 

But why the need for anything? Just have a meeting. An invocation is a non value added exercise that is just something to fight over.
 

I'd certainly agree with that; My mind shrinks from the number of meetings I have taken part in, and virtually all of them were conducted without an invocation.
 

like proselytizing, may be in the eye of the beholder or the beholden. If one appears before a town council seeking some form of relief or justice, he/she may have to swallow his or her perceived coercion with a prayer that may offend him/her because of a difference in faith or humanist principles. Can he/she in some fashion protest and expect to receive the relief or justice being sought before the Council?League of Legends coaching
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