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.

Thursday, May 8, 2014

"Religious pluralism, civic unity, and the judicial role"

Here is my contribution to the SCOTUSblog symposium on the Town of Greece case.  Here is a bit:

On June 27, 2005 – the last day on the bench, it turned out, for both Chief Justice Rehnquist and Justice O’Connor – the nine Justices managed to issue ten opinions regarding two challenges to public displays of the Ten Commandments.  They disagreed about premises, precedents, methodology, and results, and their work seemed to confirm the widely held view that the Court’s Establishment Clause “jurisprudence” was in “disarray,” was in “shambles,” and was a shuffling “ghoul.”

Those who hoped that nine years and four new Justices might fix the problem were, probably, disappointed by the opinions, even if not the outcome, in Town of Greece.  True, the opinion-count dropped to five, and the Justices professed a welcome, even if not entirely convincing, unanimity with respect to the permissibility-in-theory of legislative prayer and the continuing authority of Marsh v. Chambers.  But, as to the heart-of-things questions about the meaning of the Establishment Clause and the Court’s role in enforcing it through the development and application of judicial doctrines, the Justices seem to have served up – as Prof. Paul Horwitz put it, in his The Agnostic Age – yet another “dog’s breakfast.”  The controversial-but-still-bar-review-black-letter Lemon and endorsement tests were not applied, or clarified, or rejected — just ignored.  Now as before, when it comes to public-religion cases, no single “test” controls, no one factor is decisive, and not much confidence is warranted about the outcome of the next case. . . .

It is not clear . . . why our political, cultural, and other “divisions” – which are as inevitable as they are real – should be relevant to the legal question whether a particular policy is constitutionally permissible.  Several years ago, in an overlong and excessively annotated law-review article, I attempted to show that they should not be.  I reviewed in detail the genealogy of the political-divisiveness inquiry and concluded, among other things, that there is something unsettlingly undemocratic about the notion that the First Amendment authorizes courts to protect us from “confusion” or privileges judges’ sense of political “urgency.”  After all, and as Chief Justice Burger conceded in Lemon, “political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government.”  Judicial squeamishness regarding messy politics is not a reliable constitutional benchmark, and judicial observations or predictions of “political division along religious lines” are not enough to make controversial policies unconstitutional.

It is true that excessive polarization, disagreement, and division in a political community can be unsettling.  It is also true that one way to avoid “political divisiveness along religious lines” is to constitutionalize, as we did, a rule prohibiting “law[s] respecting an establishment of religion.”  (Another way, Justice Alito suggested in his concurrence, recalling the First Continental Congress, might be to join together in prayer.)  It is also worth remembering, though, the challenges and risks that attend what Justice Kagan called “the distinctively American project . . . of creating one from the many, and governing us all as united.”  We should, as John Courtney Murray once put it, “cherish only modest expectations with respect to the solution of the problem” — and, in particular, with respect to the Court’s ability to solve through Establishment Clause decisions, the problem — “of religious pluralism and civic unity.”


Garnett, Rick | Permalink