Friday, May 9, 2014
Reading Marc's comments on Justice Kagan's dissent and Adam White's reflections on the same opinion in Town of Greece v. Galloway, I have been reminded of Judge J. Harvie Wilkinson, III, of the United States Court of Appeals for the Fourth Circuit. Judge Wilkinson is best known now for his advocacy of judicial restraint in opposition to "cosmic constitutional theory." Less well known, but just as important to his conception of judging in constitutional cases, is Judge Wilkinson's affirmative vision. Judge Wilkinson sets this forth in his NYU Madison Lecture, "Toward One America: A Vision in Law."
The similarities between Judge Wilkinson's and Justice Kagan's description of how Americans should relate to their government are striking. Consider Judge Wilkinson's discussion of the importance of process in legislative bodies and courts, and how process can promote national unity:
Unity contemplates not some unattainable ideal of homogenization, but that we as a people afford process—that is to say opportunity—for those whose views and perspectives we may not share. When I hear someone say, “We are a Christian nation,” that is not right. We are a nation that respects the expression of all religious faiths, including the faith of our Muslim friends. It is that process, that bedrock opportunity for expression of difference, that promotes unity through diversity, and it is that ideal of process that must animate both courts and country.
Judge Wilkinson did not write this passage with specific reference to legislative prayer, but its application to that setting is straightforward. This theme in Wilkinson's extrajudicial lecture appears judicially in Joyner v. Forsyth County, a legislative prayer case from North Carolina in which Judge Wilkinson's opinion for a split panel of the Fourth Circuit resolved the case much as Town of Greece would have been resolved if Justice Kagan's dissent had carried the day. One can see explicit overlap between the two in a parenthetical quotation from Judge Wilkinson's Joyner v. Forsyth County opinion quoted in Justice Kagan's Town of Greece dissent:
If the Town Board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint. See Joyner v. Forsyth County, 653 F. 3d 341, 347 (CA4 2011) (Wilkinson, J.) (Such prayers show that “those of different creeds are in the end kindred spirits, united by a respect paid higher providence and by a belief in the importance of religious faith”).
Consider also Justice Kagan's discussion of how greater efforts at including different faiths on a rotating basis would have made a difference in Town of Greece:
When one month a clergy member refers to Jesus, and the next to Allah or Jehovah ... the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed. So Greece had multiple ways of incorporating prayer into its town meetings—reflecting all the ways that prayer (as most of us know from daily life) can forge common bonds, rather than divide.
But Greece could not do what it did: infuse a participatory government body with one (and only one) faith, so that month in and month out, the citizens appearing before it become partly defined by their creed—as those who share, and those who do not, the community’s majority religious belief. In this country, when citizens go before the government, they go not as Christians or Muslims or Jews (or what have you), but just as Americans (or here, as Grecians). That is what it means to be an equal citizen, irrespective of religion.
And here is Judge Wilkinson making a similar point in the conclusion of his opinion's analysis: "[C]itizens should come to public meetings confident in the assurance that government plays no favorites in matters of faith but welcomes the participation of all."
While there are substantial differences between Judge Wilkinson and Justice Kagan in many other doctrinal areas, in this area they share a similar outlook. One might say that, jurisprudentially, they are of "different creeds" but "are in the end kindred spirits."
(For more analysis of Judge Wilkinson's approach to judging in constitutional cases (including a discussion of the limits of "judicial restraint" as a label) and a discussion of the relationship between extrajudicial and judicial writing, see this law review article (forthcoming in Notre Dame Law Review) that I co-authored with Marc DeGirolami.)