Symposium: Town of Greece v. Galloway going forward

The Supreme Court yesterday decided Town of Greece v. Galloway, a case about prayer at local town council meetings.  The Supreme Court upheld the prayer scheme, which is probably what most people expected.  There were no big surprises, no sea change in the law.  The Supreme Court made it more difficult for plaintiffs to challenge legislative prayers, though the door remains open just a bit.  An early Slate column of mine previewed the case and talked a lot about the facts and the legal background.  In this essay, I’ll go through the Court’s opinions in the case and talk about where it takes us in the short term and a bit about what it portends for the long term.

Justice Kennedy writes the majority opinion for five Justices.  He concludes that the prayers are constitutional, because they aren’t overly sectarian or overly coercive.  It’s enough that the Town of Greece opened the prayer opportunity up to everyone, and allowed anyone to say anything.  It doesn’t matter that the prayers ended up being overwhelmingly Christian in tone and in number — that wasn’t the Town’s fault.  And it doesn’t matter that citizens attending these meetings may have felt pressure to pray — they had no solid reason to feel any such pressure.  That’s the holding of the Court.  And it’s not really shocking; it’s pretty much the same approach that the Obama administration had urged, and pretty much consistent with what some lower courts did before Galloway.

Now the Court leaves the door open.  It doesn’t say that everything is okay.  The Justices repeatedly caution that some prayer schemes might cross the constitutional line.  But the Court clearly means to make it more difficult to bring these cases.  The Supreme Court’s 1983 case on legislative prayer, Marsh v. Chambers, had said that legislative prayers could not “proselytize or advance any one, or to disparage any other, faith or belief.”  Notice the differences between that and the majority opinion yesterday:  “[T]he course and practice over time [must show] that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”  Notice the subtle changes there — the addition of the phrases “course and practice” and “over time,” the use of words like “denigration” rather than “disparagement,” “damnation” in place of “advancement,” “preaching conversion” instead of “proselytizing.”

The Court is clear about its desire to raise the bar, but unclear on where exactly it means to set it.  The Court’s opinion is full of vague and slightly inconsistent phrases.  The Court condemns invocations that, cumulatively over time, “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”  But at another point, the Court rephrases the issue as being whether there is “a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose.”  Is there a difference there?  Later on, the Court adds there might be a problem “if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.”  But later the Court seems to change course slightly, saying that the issue is whether the government “allocated benefits and burdens based on participation in the prayer,” “received [citizens] differently depending on whether they joined the invocation,” “signal[ed] disfavor toward nonparticipants,” or “suggest[ed] that their stature in the community was in any way diminished” by not participating.  Maybe there is a common core here, but it’s not clear which of the things (if any) is supposed to be the touchstone.  And each of them, the Court stresses, is a “fact-sensitive inquiry.”

The predictable result is that no one has any idea where the line is.  And perhaps this is the intended result too:  The Court wants to set the bar high enough to discourage plaintiffs from bringing these suits, but the absence of any bar whatsoever would only encourage abuses by defendants.  If the goal is to paralyze both sides, it’s best to have a very unclear test.  (Perhaps the holiday display cases and the Ten Commandments cases are other examples of that.)

All of the opinions have strengths and weaknesses that are bound up with each other.  The majority’s opinion avoids the blowback of a Supreme Court decision invalidating government-sponsored prayer and the societal division that might be caused if local governments across the country were forced to give prayer up.  But this comes with a serious cost:  Besides the uncertainty of the rule, the Court seriously dilutes the protections for religious minorities.  Justice Kagan goes over that well in her dissent, and I have expressed my thoughts on it too at great length.  Another weakness in the opinion, one of more interest to academics than to lawyers, is that it’s hard to figure out the Court’s theoretical framework.  Justice Kennedy insists he has one.  He says that legislative prayer must no longer be treated as some weird carve-out from the Establishment Clause, which suggests he wants to reconfigure the Establishment Clause in its entirety in light of the Framers’ approval of legislative prayer.  But at the same time, his opinion goes to great lengths not to touch anything beyond legislative prayer — the Court avoids saying or implying anything that will cause ripple effects in its jurisprudence regarding, say, school prayer or financial aid to religion.

Another issue with the majority opinion lies in the language that it uses.  There’s a bit of irony here.  Over the years, when the left side was winning these cases, liberal Justices on the Court would get attacked by conservatives for being far too confident in their judgments about what endorses religion, how alienated people feel because of endorsements of religion, and so on.  The Court’s opinion here though is equally confident, though just on the other side.  Here’s the majority opinion on the issue of whether the prayers coerce nonbelievers into participating:

It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews.

In other words, you may feel coerced by the fact that the people with the legal power to approve your zoning variance are watching you pray from thirty feet away, but you’re acting unreasonably because no reasonable person would feel that way.

Or take this one:

Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy.  And their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed.

But the Justices can’t control social conventions with the power of their minds!  Nonbelievers feel the way that they feel; their actions will be interpreted as they will by other people in the room.  No one’s sentiments will be controlled by the opinions of the Supreme Court of the United States.

Yet perhaps the most interesting aspect of the opinion is the principal dissent by Justice Kagan, which eloquently advances the interrelated values of “pluralism and inclusion.”  The dissent is striking, because it turns out that no one on the Court is interested in overruling Marsh v. Chambers.  Thirty years ago, three Justices would have declared the practice of legislative prayer unconstitutional tout court.  No one on the Court now feels that way.  Not only would they not overrule Marsh, but Justice Kagan goes out of her way to say that she agrees with it.  That is an amazing transformation that we will have to chew on.  But it almost certainly means that the recent envelope-pushing arguments – like, say, the argument against “under God” in the Pledge — will have to be abandoned.  Liberal civil rights groups will need to regroup to rethink their strategies.  It’s not that separationists can’t reliably count to five; it’s that they can’t reliably count to one.  Sixty years ago, Justice Douglas said, “We are a religious people whose institutions presuppose a Supreme Being.”  Those words grate against modern ears.  But Justice Kagan’s dissent quotes this line approvingly — although she delicately leaves off the “institutions presuppose a Supreme Being” part of it.  More than any other, that was the line in Town of Greece v. Galloway that surprised me the most.