Balkinization  

Monday, May 05, 2014

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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Comments:

Kagan has shown herself to be a great opinion writer. That Arizona opinion was as good as it gets.
 

The opinion is terrible because it accepts marsh, which was a terrible opinion. Ultimately her disagreement with the majority is factual, over the degree to which Muslims and Jews are accommodated. It is disappointing for those of us who are nonbelievers to see that no one on the current court thinks the constitution applies to us, and we've lost three votes on the court since Marsh.
 

I can easily understand the frustration of Brunonian. We'd be better off had Marsh been decided differently. But, to quote a certain Secretary of Defense, we fight our constitutional battles (most of the time) with the doctrine we have, not the doctrine we'd like to have, and Kagan did a masterful job of trying to limit Marsh's damage.
 

I too find Marsh v. Chambers dubious, but the second comment doesn't do enough to address an important aspect of Kagan's dissent which is flagged by Alito too.

It is unclear if this is really a "legislative" prayer case. As she notes, this is not the Marsh situation where mostly legislators are involved. There is a specifically public aspect to the proceedings here.

Kagan in certain places shows that even going by the plurality's own logic, the case should go the other way. But, this aspect of the case is particularly notable.

See also:

http://verdict.justia.com/2013/06/07/what-should-the-supreme-court-do-with-town-board-prayers-in-galloway-v-town-of-greece
 

I don't buy it. The dissenters could easily stated their disagreement with marsh instead of bear hugging it. They could even have said they accept it arguendo for purpose of the dissent. Frankly what Kagan did alienates me more than the majority. At least the conservatives admit they don't care what religious minorities think or feel. Kagan seems to care and the omits nonbelievers (who in many ways are considerably more maligned than other religious minorities) entirely.

I should add that in general I agree that Kagan is an excellent writer and I am a fan of her dissents generally.
 

I'm with Brunonian. Kagan massively undercuts the power of her own dissent because she doesn't take her own logic to its full conclusion. It's not just that she accepts Marsh (and makes clear that she does so on its merits and not merely on stare decisis grounds); what she ends up saying about what Town of Greece has to do is weak tea. She gives us these vivid examples of what it would be like to have officially sponsored sectarian prayer in a context when citizens interact directly with their government, but then appears to suggest that it's just fine as long as once in a while the government invites a rabbi or an imam (or as long as prayer only excludes non-monotheists, rather than Jews and Muslims too--equal citizenship, apparently, only goes so far). She disparages Alito for calling her objection "niggling," but it does have that feel, not because the considerations she brings to bear aren't important, but because she doesn't stand by them herself. She compromises her own opinion.
 

" I think the Town of Greece’s prayer practices violate that norm of religious equality"

I have to say, whatever you think of the relevant law, this phrase rings oddly in conservative ears. She's a JUDGE, for goodness sake, not a guidance counselor. She's supposed to be enforcing laws, not "norms".
 

Brett seems to challenge the Constitution's concept of "religious equality" set forth in the First Amendment. Perhaps Brett believes in "religious inequality," at least for non-Christians or secularists. It is rather simplistic of Brett to ride the word "norm" in his critique, taking it out of obvious context with Kagan's discussion and application of the law. Brett obviously prefers the "norm" of the Founders/Framers of white Christian "religious equality." But we've come a long way what with the Civil War Amendments (despite Justice Thomas' view expressed in his concurring opinion).
 

The whole sentence:

"I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality—the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian."

Not just any old norm -- the norm that is expressed by the "law." But, "conservative" does better explain some things some people say than "libertarian."

Anyway, one other thing about the other comment. I'm not sure what sort of "nonbeliever" the person is. "Religion" is not just a belief in God. In fact, even atheists are known to practice religious rituals.

Kagan notably used a broad definition citing "ultimate concern." At any rate, "belief" and "belief in God" is not the same thing. And, perhaps this is a well timed opinion with the National Day of Prayer just passing.
 

Right Joe,

Even atheists religiously floss their teeth. The Constitution requires that they not force such on their fellow citizens.

I fault Kagan for not mentioning atheists, agnostics, humanists and others of the 20% of Amerikans who wish not to participate in all the ritual prayers and genuflecting.
 

Proselytizing on a government's nickel may be quite nuanced and difficult to avoid by some religions because of their basic beliefs. Is proselytizing in the eye of the beholder or the beholden? Various Christian religions are in a sense competitive with each other but they seem to band together, for the most part, when it comes to offering a prayer, or whatever, at a government function, even though the God of Abraham covers not only Christians but Muslims and Judaism. But there are also the secularists and varied religions not based upon a single deity.

Let's have free exercise of religion in their houses of worship, in home, in private functions. But a government should maintain neutrality. If I attend a house of worship, I respect their rules even though I may disagree with them. When two well dressed young men come to my home, I can challenge their efforts to proselytize,including perhaps as a form of self defense per Heller and McDonald. But when I go to a government forum I should not have to confront what I take to be proselytizing.
 

Joe, I'm taking exception to the langage here, not necessarily the reasoning. "Norms" are none of her concern, "laws", including the highest law of the land, are.

To a conservative, a judge talking about "norms" is off-putting. It causes the suspicion that somebody is trying to smuggle in something which isn't law, into the case. Conservatives want a bright line between what is law, and enforcible in court, and what isn't law, and judges should leave to the elected branches.

This is not the sort of terminology she ought to be using, if she wants to persuade the majority.
 

Brett: One reasonably common usage of "norm" is to mean "standard" or "rule."
 

Why use a word that *can* mean law, when you've got words available which unambiguously *do* mean law? The natural suspicion of a conservative would be, because you want to use the ambiguity to conceal that you're treating not-law as law.

But, fine, ignore my advice on how she could have phrased things better if she wanted to win some more votes. It's not like I generally want her to be better at that.
 

Kagan is arguing her own preferred accommodation policy, not enforcing a constitutional requirement, even if it was written in accessible prose.



 

Brett's:

"To a conservative, a judge talking about "norms" is off-putting. It causes the suspicion that somebody is trying to smuggle in something which isn't law, into the case. Conservatives want a bright line between what is law, and enforcible in court, and what isn't law, and judges should leave to the elected branches."

is unbecoming the anarcho libertarian that he professes to be. Brett should perhaps read the essays of many conservative constitutional scholars that dwell on "norms." In any event, Brett merely takes Kagan out of context. Sure, conservatives may want a bright line, as may others. But there are not that many bright lines on constitutional issues. And Shelby demonstrates that the conservatives on the Court override the elected branches will-nilly as suits their political bent.
 

I'm not aware where "the conservatives admit they don't care what religious minorities think or feel."

This exaggeration is dubious since it makes the too weak limits in place even weaker. It also makes me wonder how Kennedy joined a few cases where local practices were struck down for that very reason.

Kagan took the path that the average judge or justice takes. They accept thirty year precedents as they are and try to show even then the practice is a problem. If you don't like this, blame normal practice across the board. She has to play the long game here. I'm unsure how can truly like her dissents because this is how she usually writes them.

The same applies to JHW. Dissents take things to "their full conclusion." That isn't how things work. And, a full reading of what she wrote, not just citing Alito, or what you think it what "appears," requires more.

The plurality referenced nonbelievers more while Kagan dissented showing how even for Christians the practice violated the 1A's overall law and values.

The flossing teeth bit does address my point -- if you are going to talk "20%," many of them "believe" in something, even in some cases going to clearly religious services.
 

I actually agree with Brett that 'norms' is a less than ideal word choice. Perhaps Kagan went with that word and much of her argument in an attempt to not bring up the endorsement test lest it be overruled (which, for the record, I think would be quite a bad result)?
 

Mr. W's "agreement" with Brett on the use of "norm" by Justice Kagan strongly suggests to me that Mr. W ignores context to the same extent as did Brett. Imagine, the forest of Justice Kagan's dissent boils down to a single tree - "norm" - in the minds of both Brett and Mr. W. As I noted in an earlier comment, many conservative constitutional scholars stress "norm," "normative," and the like in their essays.

By the way, Mr. W, that's some speculation in mind reading of Justice Kagan's choice of "norm,"

And keep in mind the plurality aspect of the Court's opinion as Justice Thomas strays from the concept of incorporation via the 14th A with respect to the 1st A's religion clauses.
 

The NYTimes on line features Thomas Edsall's "Supreme Injustice" focusing on the Roberts Court. While the essay does not reference Town of Greece, it does reference the 1st A, but focuses primarily on business decisions of the Roberts Court. This is an interesting read with a cross section of views; the standout view for me was a recent paper by Prof. Geoffrey Stone.
 

And Tom Toles' WaPo political cartoon today sums up the Roberts' Court's treatment of business and the rest of us.
 

A final (for a while!) comment. At Larry Solum's Legal Theory Blog a like is provided to an interesting essay "Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court" that Solum gives his "Highly recommended. Download it while it's hot!" Alas, it runs 77 pages and my eyes are not yet up to it.

Now what was it said by Brett that conservatives want a bright line? How bright is 5-4 with the Roberts Court, including in Town of Greece's plurality (thanks to Justice Thomas)?
 

Right Joe,

Even atheists religiously floss their teeth. The Constitution requires that they not force such on their fellow citizens.

I fault Kagan for not mentioning atheists, agnostics, humanists and others of the 20% of Amerikans who wish not to participate in all the ritual prayers and genuflecting.
 

Joe: "It is unclear if this is really a "legislative" prayer case. As she notes, this is not the Marsh situation where mostly legislators are involved. There is a specifically public aspect to the proceedings here."

You mean that anybody could come up an offer prayers at this time?

From what I understand, the board invited certain people. The Roberts Gang declared that not to be a 'legislative' act, but a 'public' act. Where 'public' means 'only those invited by the board'.
 

As an Agnostic leaning (fingers crossed) towards Atheism, I too wish Justice Kagan's dissent had said more along the lines of Jimbino's comment. I firmly believe that the 1st A not only provides for freedom of religion but also freedom FROM religion, by interpreting/construing the 1st A in its entirety, especially the speech and press clauses in conjunction with the free exercise and establishment clauses.

Watching CSPAN's recent repeats of oral agruments in Town of Greece, I think it was Justice Scalia who wondered what a secularist or humanist or the like invited on occasion by the council might say at a Town of Greece council meeting , to which Justice Breyer suggest to Scalia to speak with him about this.

As an Agnostic, I do not proselytize as I do not wish to get into extended arguments on religion and matters of faith. This might be a problem in Georgia with its guns everywhere law, as the 2nd A may clash with the 1St A, even though words don't kill.
 

Barry, perhaps to be more clear, I meant that Marsh itself was more a "legislative" prayer case -- it is akin to the opening of the U.S. Congress.

Mainly, only the legislators themselves are affected. So, in that case, a legislator himself brought the case. Here, as Kagan and the article cited notes, the public is more directly involved given the nature of the proceeding.

Both cases are bad but this is worse since it is less an internal legislative setting.

Anyway, J. simply repeats himself. I think if we really want to honor everyone here, the full range of "beliefs" people have should be honored. This includes recognizing not believing in God or not being sure or whatever doesn't mean you are necessarily a "nonbeliever."

Kagan flagged the issue:

These are statements of profound belief and deep meaning, subscribed to by many, denied by some. They "speak of the depths of [one's] life, of the source of [one's] being, of [one's] ultimate concern, of what [one] take[s] seriously without any reservation." P. Tillich, The Shaking of the Foundations 57 (1948).

To take a for instance, the Ethical Society of New York AND the famous atheist Michael Newdow have at times used the word "religion" to describe their beliefs. Atheists and agnostics make up part of the "religion" of Unitarian-Univeralist and many "beliefs" including Buddhism, Taoism and a range of other things don't involve God.

 

Check out the NYTimes on line for Dorothy J. Samuels' "Does the Establishment Clause Apply to the States?" focusing on Justice Thomas' concurring opinion resulting in the Court's opinion in Town of Greece being a plurality opinion. The article includes some astute comments by Marci Hamilton.

The 1st A provides:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

By Thomas' logic, the entire 1st A should not apply to the states via incorporation per the 14th A since Congress is limited with respect to all aspects of the 1st A, not just the establishment clause. Presumably, then, a state could prohibit the free exercise of religion, freedom of speech, etc.
 

It is disappointing for those of us who are nonbelievers to see that no one on the current court thinks the constitution applies to us, and we've lost three votes on the court since Marsh. LOL coaching
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Shag hits an important point -- the WHOLE First Amendment is in one way a federalist position & this was in part seen when opponents of the Alien and Sedition Acts, now seen as mainly a free speech battle, in part rested on the 10A -- they argued it invaded the power of the states.

Anyway, I simply don't know though what is left when we remove the free exercise component mixed with some equal protection concern of states specifically favoring certain religions over others. Honoring the "Our Father" specifically as a state prayer, e.g., seems to me to be likely to put some pressure to conform and/or raise an equal protection claim of some sort.

But, even if not, only such purely (?) ceremonial enactments would amount to a "pure" Establishment Clause claim not remaining under Thomas' test.
 

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