an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Town of Greece and the Demise of Religious Neutrality
Richard Schragger, Micah Schwartzman, and Nelson Tebbe
The Court has decided the first of two anticipated blockbuster religion clause cases this term. In Town of Greecev. Galloway, it held that a town legislature may open its meetings by inviting a minister to offer an explicitly sectarian and denominationally specific prayer without running afoul of the Establishment Clause. Constitutional prohibitions apply only if there is a long-term practice of giving prayers that proselytize or denigrate other faiths, or perhaps if there is evidence of intentional discrimination in selecting prayer-givers. Yet the fact that a government-sponsored prayer is always given by a Christian minister and promotes Christian beliefs is not evidence of discrimination. In over a decade, every prayer given at the start of board meetings in the Town of Greece was delivered by a Christian clergyperson, and two-thirds of those included theologically specific content, such as references to the divinity of Jesus Christ.
The 5-4 outcome, authored by Justice Kennedy, wasn’t all that surprising. In Marsh v. Chambers, decided more than thirty years ago, the Court upheld a legislative prayer practice. But during the height of its non-endorsement jurisprudence, the Court had read Marsh as a constraint on the sectarian character of government religious speech. Now, the Court rejects that reading of Marsh. Sectarian prayer is fine. Denominational neutrality is not necessary. The town need not put restrictions on the prayers that ministers offer. Indeed, Justice Kennedy virtually insists that any regulation of the ministers’ prayers would be impermissible.
We should pay attention to this move, for in Justice Kennedy's eyes there is a potential Establishment Clause problem if a town board decides to “censor”—the Court's term—its own prayers. Why? Because, it turns out, the town board is not praying at all. Instead, the ministers that the town has invited to pray are praying, and the government cannot dictate their religious speech without violating the Establishment Clause.
We have seen such a move before. The Court has been adept at turning public speech into private speech and private speech into public speech, so as to avoid constitutional problems. In Pleasant Grove City v. Summum (discussed here), for instance, the Court turned a privately funded monument of the Ten Commandments into public speech in order to insulate it from public forum rules under the First Amendment. Here, the plurality appears to do the reverse, turning what is public speech into private by muddying the waters of who exactly is praying and to whom.
The confusion is abundant. We know that the prayers are given at the behest and invitation of the town board, but according to Justice Kennedy, the town board cannot “require chaplains to redact the religious content from their message to make it acceptable for the public sphere.” At the same time, however, Justice Kennedy tells us that the prayers are really for the edification of the legislators themselves, and not mainly addressed to the public. The town itself isn’t praying, just the legislative body. And so the government isn’t really coercing prayer. This, however, raises the question: If the prayer is just for the town board, why can’t they determine the content of the prayers?
Meanwhile, after arguing vociferously that “the government may not define permissible categories of religious speech,” Justice Kennedy does that very thing. He argues in his next paragraph that invited chaplains may not “denigrate non-believers . . . threaten damnation, or preach conversion.” Really? Note how “the government” apparently isn’t “defining permissible categories of religious speech” by inviting ministers to give sectarian prayers at the start of town board meetings. “The government,” it appears, only comes into the picture when it is censoring religious speech that it has already decided to sponsor and promote. When the town board invites ministers to give sectarian prayers at the start of government business, it is seemingly not engaged in “defining the permissible categories of religious speech” at all. And when the Court itself insists that prayers only be the sort that “unite” legislators, and not those that reject such ecumenism, it isn’t determining the content of prayers, either.
As far as we can tell, Justice Kennedy has no principle to distinguish what the ministers were doing before (preaching the word), and what they can’t do now (preach conversion or denigration). Nor can he tell us why legislative prayer can be distinguished from all sorts of other prayers at all sorts of other government events. In a powerful dissenting opinion (rightly praised by Sandy Levinson below), Justice Kagan raises the possibility of prayer in the courtroom before a trial, prior to a naturalization ceremony, at a polling place on election day, or at the DMV. And she is right to be concerned. If governments want to invite ministers in to “solemnize” all these ceremonies, they can, and Justice Kennedy has no theory as to why this would run afoul of the Establishment Clause, as long as they don’t proselytize or preach damnation.
Actually, strike that last sentence. Justice Kennedy would allow some ministers to preach damnation. He observes that courts should not examine particular prayers in isolation, but should instead examine an entire practice before wading in to enforce his proposed constitutional limits. Occasional damnation is fine, as long as it does not become a habit. Here we see some of the last constraints on government-sponsored sectarian prayer coming undone. And we see the ultimate demise of government neutrality among faiths.
C. Schragger is Perre Bowen Professor Barron F. Black Research
Professor of Law at the University of Virginia School of Law. You can
reach him by e-mail at schragger at virginia.edu
Micah J. Schwartzman is Edward F. Howrey Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schwartzman at virginia.edu
Nelson Tebbe is Professor of Law at Brooklyn Law School. You can reach him by e-mail at nelson.tebbe at brooklaw.edu