Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Monday, May 5, 2014

Town of Greece: Some Opening Thoughts from Me

Thanks, Marc and Rick, for kicking off discussion about Town of Greece.  The opinions offer something of note on the many varied issues that we varied bloggers emphasize.

Justice Kennedy—the deciding vote as usual—wrote the majority opinion to approve legislative prayers, based on the long tradition of conducting them, but also to leave some room to challenge them in another case if “the course and practice over time shows that the invocations denigrate nonbeliev­ers or religious minorities, threaten damnation, or preach conversion.”  These qualifiers create a real tension in the opinion.  The Court refused to require that each prayer be “nonsectarian” (for example, to forbid prayers given “in Jesus’ name”), on the ground that this would require legislatures and reviewing courts “to act as supervisors and censors of religious speech,” with no consensus as to what is “sectarian.”  The way to achieve fair treatment across religions, the Court says, is to have prayers from different faiths, not to drain the specific content from each prayer.  I’m quite sympathetic to that holding.  But to suggest that prayers may not “preach conversion” or warn about damnation likewise invites supervision and censorship—while on the other hand, placing no limits on such prayers can lead to highly divisive controversies for relatively little gain.  Moreover, there is likewise a lack of consensus—indeed, there is sharp disagreement—over when a particular prayer is becomes “denigrating” or “proselytizing.”  The brief I joined with other scholars criticizing legislative prayers provides evidence  that these problems will be (because they have been) non-trivial and recurring.  Why is the Court OK with one kind of censorship and division but not another?

Marc’s answer (and, for the most part, the Court majority’s) looks to tradition to sort out those questions.  We have a history of allowing prayers in Jesus’s name, but also of reacting against prayers that “attack” others.  Even though drawing content-based lines in either case involve similar logical problems, a lot of Americans—and the Court—seem to be comfortable with the distinction and muddling through under it.  And Rick rightly continues to remind us that no course of action will avoid division—so the answer may be, as the Court says, to intervene only when “a course and practice over time” shows denigration of minorities.  That standard pretty much limits future challenges to places dominated by one faith where officials make no effort to be open to or respectful of others.

Still, in all of these cases involving practices of “civil religion,” I remain uncomfortable when their proponents—who are mostly religious believers—show confidence in majority rule and dismiss arguments that the impacts upon religious minorities are a special matter of concern.  As I’ve written in various contexts before, if traditional/orthodox believers want the burdens they experience from government policy like the HHS mandate to be given distinctive weight, they should give also distinctive weight to the burdens of other minorities, including those felt by someone who experiences a prayer he deeply disagrees with at the beginning of a public meeting where he is presenting his case to the decision makers.  The propositions “Let the majority decide” and “Religion is like other issues” are very harmful to claims on the free exercise side—which is increasingly where traditionalist Christians will have to seek protection, as the news discussed on this blog confirms almost daily.

Predictably, I’ve been asked by reporters about what Town of Greece means for the contraception-mandate cases.  It’s hard to draw much from an Establishment Clause decision to predict a decision on the “free exercise” side of religious-liberty matters.  I think the Court should strive for more of a consistent vision of the two clauses, but it still tends to see them as distinct matters. 

With that said, one possible general lesson from Town of Greece is that in disputes over religion the Court will allow the majority to act in ways that promote “shared ideals and common ends” (to use the Court’s words) even if that affects religious dissenters.  That theme would suggest the Court will be reluctant to overturn the federal mandate on commercial employers to cover contraception.  That’s the majoritarian strain in the Establishment Clause debate that worries me for free exercise (RFRA) rights.

I recognize there’s a very different perspective on this: an argument that ceremonial invocations of religion support meaningful free exercise by affirming that faith is not simply an insular, private matter but may be carried into civil society, so that free exercise accommodations are not limited to churches and clergy but extend to religious institutions that engage in activities of a civic nature such as education and social services.  (I explored that line of argument here.)  And Town of Greece contains a passage with some bearing on this.  The Court finishes by saying that ceremonial prayer recognizes “that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power.”  In the contraception cases, the objecting employers argue that they should able to follow their duties to a higher power even as they participate in a “civic” activity such as economic life.  This vision—that religious practice is not confined to insular private spheres—is more hospitable to the business owners challenging the mandate.

In the end, for the reasons in the last-linked article above, I think we have to maintain a distinctive sympathy for religious objectors on the establishment side—for a number of reasons, but partly in order to maintain a distinctive sympathy for religious objectors on the free exercise side.  You can allow legislative prayer and still keep that distinctive sympathy, but you have to be careful.

http://mirrorofjustice.blogs.com/mirrorofjustice/2014/05/town-of-greece-some-opening-thoughts-from-me.html

Berg, Thomas | Permalink