Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, May 14, 2014

Did Justice Kennedy misuse Meyerson's book on religious liberty in Town of Greece v. Galloway?

The Baltimore Sun has a run a short piece criticizing Justice Kennedy's use of a quotation from Michael Meyerson's excellent bookEndowed by Our Creator: The Birth of Religious Freedom in Americain his opinion for the Court in Town of Greece v. Galloway. (HT: SCOTUSBlog) Says the Sun:

It's not every day that a law professor has his book quoted by the Supreme Court, and so the University of Baltimore's Michael I. Meyerson was understandably intrigued when his 2012 work about the Framers' views on religion made it into Monday's decision on public prayer.

But the plug from Justice Anthony M. Kennedy, who wrote the majority opinion, was somewhat bittersweet. Meyerson says the decision misread the point of his book and took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public.

It is certainly true that Kennedy's opinion for the Court does not square with the thrust of Meyerson's account of how the Framers used religious language in public settings. As to Justice Kennedy's use of the quotation at issue, however, one might note in Justice Kennedy's defense that he was simply quoting Meyerson's book as it was quoted in the Brief for Respondents. Kennedy wrote:

Respondents maintain that prayer must be nonsectarian, or not identifiable with any one religion; and they fault the town for permitting guest chaplains to deliver prayers that "use overtly Christian terms" or "invoke specifics of Christian theology." Brief for Respondents 20. A prayer is fitting for the public sphere, in their view, only if it contains the `"most general, nonsectarian reference to God,'" id., at 33 (quoting M. Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America 11-12 (2012)), and eschews mention of doctrines associated with any one faith, Brief for Respondents 32-33. 

The opinion here appears to accurately represent the respondents' position, which is all that Kennedy purported to do in this portion of the opinion. Respondents' position is also close to Meyerson's position with respect to Town of Greece, as set forth in the amici curiae brief in support of respondents that he joined. The first argument heading in the brief is that "Leading Framers Widely Believed that Governmental Religious Speech, If Allowed, Should Be Nonsectarian." And, citing Endowed by Our Creator, that brief states:

The words the Framers used in national charters, presidential addresses, and prayer proclamations—that is, speech directed at the public analogous to the speech at issue in this case—demonstrate the Framers’ belief that such religious language should be universal and nonsectarian. To be sure, the early Presidents did not shy from religious rhetoric, but the public religious speech of Presidents Washington, Jefferson, and Madison reflects an overriding concern that religion should unite, not divide, the nation. These Framers sought “to find a civil vocabulary that could encompass all people, regardless of their faith.” Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America 12 (2012).

It should be clear by now that the conclusions reached by the majority in Town of Greece differ from the conclusions the Justices in the majority would have reached had they followed Meyerson's lead. But that should have been apparent to anyone who has read both the opinion for the Court and Meyerson's book. The problem is not that Kennedy misdescribed Meyerson's position, as one might think when reading the Sun's claim that Kennedy "took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public." The context of Kennedy's opinion makes clear that he is describing the position that he is about to reject. The problem, instead, from Meyerson's point of view, is that Kennedy's rejection of his position relies on a misunderstanding of the Framers' use of religious language--a misunderstanding that he would not have labored under, one might suppose, if he had read, understood, and agreed with Meyerson's book.

[Update: Last sentence edited for clarity at suggestion of @MarcODeGirolami.]

https://mirrorofjustice.blogs.com/mirrorofjustice/2014/05/did-justice-kennedy-misuse-meyersons-book-on-religious-liberty-in-town-of-greece-v-galloway.html

Walsh, Kevin | Permalink