Symposium: Thoughts on Town of Greece – if the kilt fits

Paul Horwitz is the Gordon Rosen Professor of Law at the University of Alabama School of Law and the author of The Agnostic Age: Law, Religion, and the Constitution (Oxford University Press, 2011).

Like most people, I expect, my first thoughts on reading Justice Kennedy’s opinion for the Court in Town of Greece v. Galloway were of Scottish kilts.  For those few poor souls whose thoughts inexplicably turned elsewhere, I suppose a bit of explanation will be needed.  But you’ll have to wait a bit.

It’s still early, but I suspect that yesterday’s decision is unlikely to produce more than pro forma outrage from its critics.  Certainly there will be criticism; it just wouldn’t be the Internet without the wringing of hands and gnashing of teeth.  But this criticism should be taken somewhat lightly.  The outrage may be more than a mere performance, but it will be less than whole-hearted. Most of the decision’s critics will have expected this result.  In private, if anything, they will be heaving a sigh of relief that the damage, as they see it, wasn’t greater — that the Court more or less stuck to the historical justification for legislative prayer offered in Marsh v. Chambers, and did not reject, in clear terms and for all cases, the use of the “endorsement” test in Establishment Clause jurisprudence.

For this, we owe thanks of a sort to Justice Kennedy and his fuzzy style of opinion writing. It is an oddly consoling aspect of the United States Supreme Court that we basically get the Justices we deserve.  If ours is a polarized age, in which our politics is a mix of extreme public statements and halting, indistinct, or non-existent concrete actions, then Justice Kennedy is a man of our times.  His opinions are short on concrete tests and long on general disquisitions about the American creed, interspersed with oracular-cum-psychoanalytic pronouncements — here about human dignity and animus, there about woman’s regrets.  Like The Shadow, Justice Kennedy knows what lurks in the hearts of others.  There is a unity to his approach; whether it is praised as insightful or derided as “argle-bargle” ends up depending, in any particular case, on the political valence of the issue.

So it is with his opinion in Town of Greece.  If there is a core to the opinion, it is the old point from Marsh: Legislative prayer has been a part of the American Way from the Founding to the present.  While the Court might tinker around its edges, there is no chance that it will block the practice.  Indeed, Justice Kagan’s principal dissent emphasizes her agreement with Marsh.  None of the dissenters in Town of Greece adopt the more stringent position of the dissenters in Marsh.  While one assumes everyone’s view on this point is sincere, one might also speculate that this view is enthusiastic on the majority’s part, and somewhat more prudential for the minority.  Just the same, the conclusion is clear:  Marsh is not going away.

This being a Kennedy opinion, however, Town of Greece does not stop with history.  There is mind-reading, as well, as Justice Kennedy – adopting a passively constructed, third-person-oracular voice – tells us that legislative prayer “is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage,” or assures objectors that he knows the difference between “offense” and “coercion.” There is the typical insistence that the Court will be watching, ready to assert itself and its role as Platonic guardian, if it finds “a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose” in a particular case.

There are two additional points worth noting.  Of particular interest is the majority’s rejection of any rule that would insist upon “nonsectarian or ecumenical [legislative] prayer.”  To do otherwise, Justice Kennedy writes, “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech,” a role they are neither authorized nor competent to perform.  So long as the “prayer opportunity as a whole” can be said to “reflect[ ] and embrace[ ] our tradition” and the speakers avoid disparaging other faiths, sectarian prayers in themselves will be unobjectionable.  Also worth noting is Kennedy’s view that a town is not obliged to search beyond its borders in order to provide a diverse range of legislative prayers, so long as it does not actively discriminate against particular faiths.  Like the school district lines in Milliken v. Bradley, the shape of the political jurisdiction in which the legislative prayers take place is treated as more than a “mere administrative convenience,” even if “nearly all of the congregations in town turn[ ] out to be Christian.”

I have some sympathy for both these points.  The first point, in particular, I think is exactly right.  We may question — I do question — whether legislative prayers are constitutional at all.  If they are, however, it should not be on the basis of their being sufficiently nonspecific.  A point of etiquette is not a rule of law.  Some people find ecumenical civil religion valuable; others disparage it as a corruption of religion.  Either way, it does not come with an instruction manual.  If the Court were to attempt to write one, it would satisfy no one – not those who think religiosity shouldn’t be watered down, and not those who think any religiosity delivered under official auspices excludes them.  If we are to have legislative prayers at all, I would rather not see them drafted by committee.

The second point is perhaps more troubling, given the potential for religious exclusion it presents.  There is nothing sacred, so to speak, about political boundary lines; and, as Town of Greece acknowledges, there may be cases where a synagogue or other place of worship serves a town’s residents but is situated on the other side of those invisible lines.  But using those lines is at least sensible, and probably better than having courts attempt to provide definitive instructions on how to assure an adequately diverse list of prayer-givers.  Moreover, and despite the very real conflicts that arise, most political jurisdictions at least make some effort to invite speakers of various faiths, or are amenable to doing so if asked.  We ought not let fears of majority tyranny outrun the reality, which often (but not always) features good-faith efforts at accommodation and religious pluralism.

That said, these points, as well as the Court’s broader assurance that it will step in if circumstances demand it, create obvious tensions with Town of Greece’s core focus on history, and with Justice Kennedy’s argument that the Court is incompetent to draw lines for “each specific prayer” or minister.  Kennedy points to two prayers that “strayed from the rationale set out in Marsh,” but concludes that they do not constitute a “pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose.”  Once we treat Marsh as offering a “rationale” or principle, however, rather than as a simple sedimentation of historical practice, we are back in disputed territory.  How do we distinguish a permissible “prayer opportunity” from a “pattern” of impermissible prayers?  On the basis of their content – which is clearly improper under both the Speech and Religion Clauses?  On the basis of the legislators’ intent, which is often hard to divine?  On the basis of how closely the prayers track ecumenical civil religion – which the Town of Greece Court rejects as a constitutional requirement?

Unsurprisingly, the Court offers little real guidance here. Indeed, it seems to me that treating Marsh as offering a principled rationale, rather than viewing it as a historical carve-out — as what I have called elsewhere a “constitutional easement” over the Establishment Clause — ends up begging the Court to provide the kinds of answers that Justice Kennedy quite rightly says in Town of Greece that it can’t provide.

That brings me, in a roundabout way, back to kilts. In the collection The Invention of Tradition, the historian Hugh Trevor-Roper argued that Scottish kilts and tartans, which many Scots themselves view as part of a hallowed tradition, were in fact a relatively recent invention, one that achieved the status of “tradition” only much later.  Such “invented traditions,” Cary Franklin has written elsewhere, are “social practices that purport to be old, or imply continuity with the past, but are actually quite recent in origin.”  As Eric Hobsbawm wrote, “All invented traditions, so far as possible, use history as a legitimator of action” — even if that history turns out to be something of a modern, changeable artifact.

If Justice Kennedy had said bluntly in Town of Greece that all legislative prayers are permitted as a fixed, historically based matter, I think that decision would be relatively clear – dubious, but clear.  But that’s not all he did.  Instead, he invoked Marsh having a “rationale”—as affirming a “tradition” of legislative prayer that has contours and limits, albeit vague ones.  And he made clear that the Court will continue to police these limits, rejecting them when they “fall outside the tradition this Court has recognized.”  However rarely it ends up doing so in practice, that puts the Court squarely in the business of defining and enforcing a tradition as the Court understands it today. Simply put, it makes the Court both the creator and the caretaker of an invented tradition.

Kennedy is surely right to observe that rejecting legislative prayers altogether would have done far more to spark new controversies than to settle old ones. In that sense, those of us who question the whole enterprise of legislative prayer may nevertheless be grateful that the decision came out as it did—that it did not cause more trouble than the practice is worth, and that it stuck fairly close to Marsh rather than using the occasion to rewrite other Establishment Clause tests. If the result is a somewhat incoherent and self-contradicting opinion, so be it; I could think of worse outcomes.

But we should recognize that as long as the Court is willing to keep legislative prayer alive and police its limits, it leaves itself open to the very questions that its invocation of Marsh and history was meant to resolve.  It leaves itself open to the continued charge that it is not simply “acknowledging” history, but writing and rewriting it according to contemporary preferences. Like Marsh, Town of Greece may purport to point to the past. But it is still mostly, and inevitably, about the present.