Tuesday, May 28, 2013

What's at Stake in the Town Board Prayer Case the SCOTUS Agreed to Hear?

By Mike Dorf

Last week, the SCOTUS granted cert in Town of Greece v. Galloway.  The case presents the question whether the Town of Greece (near Rochester, NY) violates the Establishment Clause by beginning its town board meetings with an official prayer.  The Second Circuit found a violation, although it did so on grounds that appear to be limited to the particular factual record.  In light of Marsh v. Chambers--which upheld a state practice of beginning each legislative day with a prayer by an official chaplain on the ground that such prayers were part of a tradition going back to the Founding--the appeals court acknowledged that in general, opening the sessions of a town board with a prayer would not amount to an Establishment Clause violation.

The Second Circuit thus cabined its holding with numerous caveats.  For example, the court said that sectarian prayers are not per se invalid.  But given a longstanding pattern by which the town invited only Christian clergy to deliver the prayers (at least until the practice was challenged), an objective reasonable observer would infer that the Town of Greece was affiliated with Christianity.  In short, under the "totality of the circumstances," the Second Circuit found a violation of what is sometimes called the "endorsement" test, which is itself a gloss on the "effects" prong of the Lemon test (announced in Lemon v. Kurtzman).

What will the Court do?  The cert petition does not expressly ask the Court to overrule Lemon, but that is a possibility.  It has been two decades since Justice Scalia likened the Lemon test to a "ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried."  Lemon has long occupied a place in the Court's Establishment Clause jurisprudence similar to the place that Buckley v. Valeo occupies in its free speech jurisprudence: A majority of sitting Justices would like to overrule it but they can't agree on what would replace it, so it remains more or less the law.

Even if the Court in Town of Greece does not overrule Lemon itself, it could reject the "endorsement" test as an inappropriate gloss on the effects prong of Lemon.  Lemon establishes a three-part test for validity under the Establishment Clause: (1) there must be "a secular legislative purpose"; (2) the law's "principal or primary effect must be one that neither advances nor inhibits religion"; and (3) the law "must not foster an excessive government entanglement with religion".  Various Justices (but especially now-retired Justice O'Connor) have suggested that to apply the second prong, one should ask whether a reasonable observer would perceive the government as endorsing religion.

The endorsement test has been criticized by some liberals (like yours truly) as too permissive because, in positing an objective observer, it understates the extent to which the Establishment Clause should be interpreted to protect religious minorities (including nonbelievers) from feeling like second-class citizens on the basis of their religious affiliation (or non-affiliation).  This sort of criticism accepts the idea of an endorsement test as the right way to understand the effects prong of Lemon but proposes that instead of positing a reasonable observer, we should posit a reasonable religious dissenter or nonbeliever.

It is highly unlikely that five Justices would vote to tighten the endorsement test in the way I have just suggested--in Town of Greece or any other case, at least given the Court's current composition.  It is more likely that the Court would abandon the endorsement test entirely, because conservatives dislike the test on the ground that it is too restrictive.  The mere perception of endorsement, they say, does not offend the values underlying the Religion Clauses.  In this view, endorsements that fall short of coercing belief or affirmation by religious dissenters are permissible.

But I doubt that the Court would use Town of Greece as an opportunity to abandon the endorsement test on conservative grounds either.  That's because there is a much simpler way for the Court to reverse the Second Circuit: It could simply say (as the cert petition and various amici argue) that since Marsh, legislative prayer (including for local governments like a town) are virtually per se permissible, without regard to Lemon.  As the dissenters in Marsh complained, the Court there did not even pretend to apply its standard tests per Lemon.

Liberal critics of the Court's Establishment Clause jurisprudence (like me) should be hoping (praying?!) that the Court takes this last course.  The seemingly unprincipled tradition-based exception for legislative prayer has the salutary effect of preserving the general principle in other contexts.  An attempt to reconcile the permissibility of legislative prayer with the Establishment Clause precedents more broadly would probably end up weakening those precedents.  The Court almost certainly granted cert with the goal of reversing the Second Circuit.  Doing so in a way that strengthens the Marsh exception to Lemon would do the least damage to the principles of Lemon.  Those principles themselves are weaker than what liberals like me would like to see, but any change that this Court would likely make would go in the wrong direction.


Joe said...

I hope for a limited ruling for this misguided grant -- the opinion below was decided on narrow grounds & doubtful the USSC took the case to remind lower courts like the 2CA noted, that such prayers are acceptable per Marsh but lines can be crossed.

Maybe it will -- like the case where a Wiccan was denied a chance to offer a prayer and the lower court said it was okay, since the policy as a whole was inclusive ... except when it wasn't.

I think Prof. Dorf's prediction is sound. The telling opinion is Justice Kennedy's partial dissent in the Allegheny case. The main opinion (fractured) provided a somewhat strict application of Marsh, cited by the court below here. Kennedy had a more permissive view.

Marsh allows the Court to decide narrowly here with an opt-out for legislative prayers and if phrased correctly, it might even get at least one of the liberals to go along though Breyer might concur separately to reaffirm his stance in Van Orden.

Kennedy in his opinion in Allegheny basically held that religious symbols officially in place by the government only violate the 1A in extreme cases like a gigantic cross on top of City Hall.

He left a little room for an endorsement test though as a whole supported coercion/proselytizing as the rule. Four justices might want endorsement to die but since that is not necessary, it probably won't occur. The possibility of a limited ruling might reduce the chance for (interesting) separate opinions from the liberals.

David Ricardo said...

When one reads the 2nd Circuit opinion the tone is one of trying to as narrowly as possible strike down the activities of the Greece Town Board. The problems the Court found were that the Greece prayers were almost exclusively limited to Christian prayer and that town of Greece resources were used to select those given the prayer.

I think Prof. Dorf is correct in his description of what Conservatives view about endorsement,

“In this view, endorsements that fall short of coercing belief or affirmation by religious dissenters are permissible.”

but in the case of the Town of Greece coercing belief or affirmation is exactly what is going on. Those who have business with the Town Board of Greece must attend the meeting and so they are ‘coerced into participating in Christian religious services. This is certainly establishment of religion by government under any reasonable interpretation.

As far as the Conservatives on the Court, Mr. Dorf gives them far more credit than credit is due. In fact Justice Scalia and his ilk have no problem with government establishment of a religion, and see it as part of the American way of life and law. That the Constitution prohibits such a thing is just a minor, insignificant point to them, and one that may be disregarded because religion to them in public life is just so much more important.

No reasonable person, even an atheist should have any problem with a moment of silence or silent prayer, or even a non-sectarian appeal for guidance and judgment. But the town of Greece and its supporters want Christian religious services to be a part of government. That such a thing is even considered would be appalling to Mr. Jefferson.

Sam Rickless said...

@Mike: Great post.

@ Dismal Political Scientist: I don't think that I am coerced into *participating* in a Christian religious service if I attend a meeting of the Greece town council, any more than I am coerced into *participating* in a Christian religious service when I attend a Christian wedding in a church. I am present at a time when a prayer is recited. I am coerced into experiencing the prayer as a condition of my being in the room at that time, unless I close my eyes and block my ears. Experiencing the service is passive. Participation in the service is active. So I think a non-coercion principle, carefully crafted, would permit legislative prayers.

The main problem with permitting legislative prayer is that it is a profound insult to non-believers. The function of government is to serve the people, *all* the people, not just *some* of the people. When a town council permits any kind of prayer (Christian or otherwise), but does not also give equal time for atheists to speak at the beginning of legislative sessions, it sends a message to non-believers that they are second-class citizens, and that government is there to serve believers only. Here I am objecting to Marsh, but there is nothing to be done about it now.

Would Justice Kennedy please explain the difference between the practice of legislative prayer and flying the Vatican flag from, or placing a large cross on, the top of City Hall?

The very fact that there is an unprincipled exception for legislative prayer on grounds of tradition is unsettling and absurd. What if it had been traditional for town board meetings to start with a paean to the "white race"? Would we make an exception for that, on grounds of tradition?

Sam Rickless said...

P.S. When I was living in Tallahassee, FL (1995-2001), the music played in every city hall room during the weeks before Christmas was *very* religious Christian music. No Rudolph reindeer stuff. It was much more "Christ died for our sins" music. The music was loud and impossible to avoid, short of putting in earplugs. Not once did I ever walk into city hall and hear Chanukah music or any other kind of music. (And let's not even talk about the religious symbols, including crosses, on the Christmas trees in every room.) I am willing to bet that things haven't changed since I left. I complained once, but did not pursue the complaint. I never forgot the experience. The clear message was that city hall belongs only to Christians. Does this fall under the "traditional religious symbols" exception?

David Ricardo said...

@ Sam Rickless

I understand your point but I disagree. Your attendance at a wedding or a funeral or other activities like that is voluntary. You choose to attend knowing that a religious service will take place and that the purpose of the ceremony is to have a religious service. If you do not wish to attend you are free to do so at no loss to yourself.

However, if you have issues which require your attendance at a Town Board meeting, such as zoning changes and the like, or just the desire to participate in the public debate on laws and policy which is your God given and legally given right, then as a condition of that attendance you are required to be present for and at least indirectly if not directly participate in a sectarian religious service. Government is forcing your participation in religion, and in the case of the town of Greece in a particular religion.

I think the true intentions here are illustrated in a similar case in North Carolina. There a court disallowed sectarian prayer at a local government sessions. As a result ten Republicans, including the House Majority Leader, introduced legislation that stated that the Establishment clause did not apply to states or local governments and that the state of North Carolina was free to establish any religion it so desired.

While the measure was never considered, because of the immense embarrassment it brought to Republicans, it is never the less an indication of what is really the goal here. For reasons I do not understand (I am not now nor have I ever been a Christian) there seems to be an intensive desire in at least some part of the Christian community to force their religion onto others. Scalia and company see this as not only Constitutionally correct but also as good public policy. I see it as a horrible violation of the Constitution.

Sam Rickless said...
This comment has been removed by the author.
Sam Rickless said...

@DPE: I agree that some Christians proselytize, and that others feel the need to express their religious views in virtually everything they do. But it's pretty clear to me that no-one forces the general public to attend a local town hall meeting. Even if the town is considering a zoning ordinance that could affect my property, I am not compelled to attend the meeting. If I attend, my attendance is purely voluntary. All the more so if it is motivated solely by a "desire to participate in the public debate". A non-coercion principle just won't disallow legislative prayer. We need to find a different principle. The relevant principle, I believe, is that the purpose of government is to serve all citizens, and not just a subset of citizens. It follows from this that official government functions must make atheists, as well as theists, feel welcome.

Imagine that a small town near the Quebec border decides to conduct all of its official business in French. The principle for which I am arguing disallows this too. It also disallows an official invocation such as "May the Cubs beat the Cardinals", even if everyone on the town council is a Cubs fan and most people in town are Cubs fans.

Joe said...

Justice Kennedy noted in Lee v. Weisman that the ability to not go to a graduation is not really enough to avoid claims of coercion since it is such an important part of a student's life.

In a democratic republic, not going to town meetings arguably is similar, so I disagree with Sam Rickless. If there was prayer at the voting booth, is the ability not to vote equal to there being no "coercion" here?

It might be more minor but I think TDPE is correct that it still is a form of coerced participation. I don't need to go to mass, even if all I do is to keep someone company and don't pray or take communion. I'm still "participating" by being there.

The second comment also reaffirms my belief that the 2CA ruled in a limited fashion, but chances are the majority didn't take it to uphold the limited holding. Also, I think the comment underlines that the "tests" tend to bleed into one another, especially if they are not applied narrowly.

The comment about Scalia is telling (see his dissent in McCreary County v. ACLU of Kentucky ... which was too much in parts for Kennedy to join). His "it doesn't matter what version of the Ten Commandments is used" logic demeans differences of religious faith as well. I have seen this sort of thing -- cries for respect for religious belief amounting to selective establishment.

David Ricardo said...

@ Sam Rickless

Let’s go back to a basic question, which is this. “What is the purpose of having a religious invocation at a government function such as the Town Board meeting of the Town of Greece?” The answer of course is that there is no secular purpose or reason to have the religious service. The invocation or religious service is absolutely, totally and completely irrelevant, unrelated and unnecessary for the Town Board to conduct the business of government.

So why does the religious service exist if he has no secular purpose and no relationship to the activity at hand? The only answer can be that its goal is to force presence and participation by the Town Board Members and the audience in the religious activity. It is the essence of establishment of religion by government.

Your position that one could conceivably choose not to attend a government function if one does not want to participate in the religious aspect of the meeting is contrary to the point. It is not up to me or anyone to withdraw from participating in a government activity because I don’t like or want the extraneous religious activity that goes with attendance. It is up to government to bear the burden of proof or strong evidence that the religious activity is necessary to conduct the business of government. And in this case, as in almost every other case, government cannot provide that proof or evidence because it does not exist. If someone can explain how a prayer service at the beginning of the Town Board meetings is necessary to decide on a request for a zoning variance, or passing an ordinance about recycling pickups I will be happy to reconsider my position.

The point is that I and every other citizen have a right to attend, a right to participate and right to conduct our business before government, and I and every other citizen have the right to be free of coerced religion unless there is a strong and compelling reason to have a religious service at the proceedings. And since the only rationale is the desire to force religion on the attendees and since there is no relationship between the religious service and the business at hand, there is no acceptable authority for the Town of Greece to hold a religious service at its secular meeting. Doing so is a violation of the Establishment Clause. That courts fail to recognize this only means that governmental units can continue to violate the Constitution with immunity, not that what they are doing is Constitutionally correct.

Joe said...

The Court did not merely rely on tradition, which in another cases was pointed out as not enough. It did strongly rely on tradition, but noted here that tradition was constitutionally valid. The white race example would not be.

As noted some place else, "tradition" doesn't really work here. The policy is new -- 1999, I believe. I believe beforehand there might have been a moment of silence. Either way, that would have been the better policy.

"Tradition" has to take into consideration changing times, including a more diverse community and respect for different beliefs. I don't think legislative prayer works there though we are realistically stuck with Marsh so it is a matter of the best of imperfect options.

Sam Rickless said...

@ Joe and DPE: It is true that I am forced to listen to a legislative prayer as a condition of attending a town hall meeting in Greece (unless I bring earplugs). But this is a passive experience. No one is forcing me to participate, to profess, to worship. No one is forcing me to engage in some form of activity that I find humiliating or beneath my dignity. When I attend the town hall meeting, I may also find myself forced to listen to what I take to be far more pernicious comments by my fellow citizens (and perhaps by the town councillors), again unless I wear earplugs. I really just don't see what the big deal is. Call it conditional coercion if you like, but it is just not the kind of coercion that strikes me as inherently problematic. By contrast, it *would* be inherently problematic to be forced to say something one believes to be false or to be forced to engage in outward worship of someone one takes to be non-existent. That would be degrading and/or humiliating.

I'm not even sure that we can say that the establishment clause is strong enough to disallow legislative prayer. It depends what "establishment" means. This is a term of art, and I suspect a good case can be made that the original meaning of establishment is not capacious enough to cover legislative prayer.

I take the problem with legislative prayer to be much deeper than the establishment clause, something having to do with the nature and function of legitimate government. A town hall meeting, in particular, is supposed to function as a neutral place in which all citizens have the ability to air their legislative recommendations to their representatives on the town council. By its very nature and purpose, it should welcome all.

DPE asks whether legislative prayer could reasonably be thought to have a secular purpose. Sure, it can. Legislative prayers often contain expressions of hope that the participants in debate will be tolerant of different views, will treat their fellow citizens with respect, will be motivated to pass legislation for the good of the whole rather than for purely self-interested reasons, will keep their destructive emotions in check, and so on. The thought may be to invoke God's help to achieve these goals, all of which are secular, and all of which are legitimate. The purpose need not be one of religious conversion, or somesuch.

Joe said...

Basically, it seems like the argument is that the burden is small enough to be acceptable. Since we don't like in utopia, this is sometimes the case.

Still, we don't "passively" require people to go to prayer ceremonies generally. It violates the faith of various groups even to be present at such things. One does not need to pray to take part at such an event. Just being there is involvement.

The "purpose" provided is secular, but not the means. And, the purpose is problematic in that prayer is used. It is not a moment of respect for which various means are provided, including by prayer, to express that thing. Prayer is selected from a range of things, singled out. That is not secular.

This is not akin to a graduation where a person is given a theme and they could if they wish use religious language. Prayer, a particular form of religious expression, is singled out. It is a mild expression of our continual civil religion establishment that this is seen as trivial.

In a land where Jesus' message of prayer in private was more important, this might be seen as much more serious.

Stefen Curry said...

He left a little room for an endorsement test though as a whole supported coercion/proselytizing as the rule. Four justices might want endorsement to die but since that is not necessary, it probably won't occur. The possibility of a limited ruling might reduce the chance for (interesting) separate opinions from the liberals. fut 14 coins  elo boosting  fifa ultimate team coins  lol boost

Unknown said...

thanks so much i like very so much your post
حلى الاوريو الفطر الهندي صور تورته حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق