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
Does the plurality's opinion in Town of Greece empower local communities going forward? The obvious answer seems to be yes, as Greece won its lawsuit and so will be permitted to continue its (citizens’?) preferred prayer practices. But not so fast. As we have already noted, Justice Kennedy's opinion for the plurality treats the prayers in Greece as an odd amalgam of public and private speech. He observes quite strenuously that if the Board invites ministers to give opening benedictions, it has a limited role in dictating the content or scope of those benedictions. The Town Board is not in charge of its prayers, it appears. Rather, the invited ministers are. Of course, the town can hire its own chaplain presumably—as the legislators in Marsh did—but it is not clear from Kennedy's opinion whether it can tell that chaplain what to say (cf. Turner v. City of Fredricksburg).
In truth, Kennedy could care less whether this prayer occurred at a town board meeting, in a state legislative assembly, or on the floor of the US Congress. For him, the rules for governmental praying do not change depending on the level of government that is doing it. After Town of Greece, all levels of government seem to have somewhat more room to offer government-sponsored sectarian prayer. That this case involved a local government seems only to matter in the most superficial sense. Justice Alito in concurrence, for instance, mentions the municipal setting of the case only in order to provide an excuse for the sloppiness of part-time officials, patronizingly treating local governments as children that can be excused for not getting their constitutional law right. Kennedy treats the case as the direct descendant of Marsh, a state legislative prayer case.
The dissenters are more attentive to the local government setting—its intimacy, the mixing of adjudicative and legislative functions. Justice Kagan in particular notes the important differences between the Town of Greece board meetings and the legislative setting in Marsh. But here too, the justices are fighting about rules that will apply across governments, not asking whether different rules should apply at different levels of government.
Yet Town of Greece once again illustrates how modern religion clause doctrine continues to be (as I have previously written) "a product of religious conflicts within smaller polities—a jurisprudence of municipal regulation." If we were to take seriously that institutional setting—the fact that religion conflicts are often municipal ones—what would our religion clause jurisprudence look like? For those worried about the higher incidence of faction in smaller scale polities (a la Madison's Federalist 10), government favoring or disfavoring of religion in towns and cities might be especially suspect, as oppression might be more likely. But centralized favoring or disfavoring of religion is a concern as well: government-religion alliances are arguably much more dangerous at the state or national level, where the fragmentation of political authority is not available to check the excesses of a run-away clerical-senatorial alliance. This is a problem Hume worried a lot about—and I do too.
RFRA and state RFRAs tend to look like the latter, nationalizing or overriding municipal policy choices that might not give such powerful privileges to religious practices and institutions. The same goes for the ministerial exception, which overrides local non-discrimination laws, and those equal treatment requirements (seeGood News Club v. Milford Central School) that override local laws that might, again, evince a local choice to avoid entanglement or indirect support of religion. The Court is more sympathetic on the other side, permitting local government activities that favor religion, as in Town of Greece. But even here the Court's religion clause jurisprudence tends to be nationalizing and centralizing. Kennedy doesn't make a decentralization argument for giving the Town more room to maneuver; he's more concerned about the individual ministers' rights than the community's religious preferences. And Justices Scalia and Thomas's wooden (pre-14th Amendment) Establishment-Clause-as-federalism-provision doesn't provide any protection to local governments at all—as localities are the political instrumentalities of their states. There does not seem to be anything in the federal constitution preventing a state legislature from adopting a statute requiring local governments to provide chaplains at local government meetings, for example, whether the locality likes it or not. One can easily imagine this occurring in states with relatively conservative legislative majorities and relatively progressive cities. State RFRAs and the federal RLUIPA already limit local governments by overriding local zoning, land use, and other regulatory laws. Town of Greece does not change the fact that local governments get little respect in religion clause jurisprudence. Their presence in these cases is treated as incidental instead of central. Advocates and justices tend to want their rules to apply across the nation. They tend to want to win, and not just in their little communities. A substantive federalism "all the way down" (as Heather Gerken and others of us like to say)—one that took seriously the public commitments of local communities—would look much different than this.
Richard Schragger is the Perre Bowen Professor of Law, Barron F. Black Research Professor at the University of Virginia School of Law. You can reach him by e-mail at schragger at virginia.edu