Town of Greece v. Galloway symposium: The end of “no endorsement”?

Steven D. Smith is a Professor of Law at the University of San Diego

From Galloway we might modestly expect illumination about the relation between official prayer and the “no endorsement of religion” doctrine.  Is official prayer sui generis and thus outside the scope of standard doctrines, as the decision approving legislative prayer in Marsh v. Chambers (1983) may suggest?  Are some prayers acceptably generic while others are unduly “sectarian”?  Should courts scrutinize in detail the totality of a city’s practice, as the Second Circuit did in Galloway?

Although guidance on these vexatious matters could be valuable, my own hopes aim a bit higher.  I venture to hope (although, truthfully, not actually to expect) that the Court will finally usher the elephant out of the room and acknowledge that the “no endorsement” doctrine, though nobly intended, is unassimilable in the American constitutional tradition.  As two-plus decades of experience attest, the doctrine cannot work as contemplated, and can only aggravate the problem its proponents want to address– namely, political division and alienation caused by religion. There comes a time when futility should be conceded.  Galloway is such an occasion.

I.

We might start by stepping back and acknowledging a pair of pertinent but countervailing truisms.  First, religious expressions by government can be imprudent, divisive, even insulting to those who do not agree with what is being said.  That truism underwrites the “no endorsement” doctrine.

But, second, official religious expressions pervade American history and current political practice.  Nor are they viewed as a uniformly shameful feature of our tradition, like slavery or segregation; on the contrary, many religious expressions are integral to some of our most revered achievements.  The Declaration of Independence, for example.  Or Lincoln’s second inaugural address: the historian Elton Trueblood explained that Lincoln’s majestic speech was a “theological classic, containing within its twenty-five sentences fourteen references to God, many scriptural allusions, and four direct quotations from the Bible.”

An unsophistical application of the “no endorsement” doctrine would require that Lincoln’s speech be sandblasted off the wall of his Memorial.  It would condemn the inaugural ceremonies of every president from Washington to Jefferson to Obama.  And, ironically, it would likely invalidate Jefferson’s legendary Virginia Statute for Religious Freedom, which in Everson v. Board of Education the Supreme Court implausibly read into the establishment clause to supply that clause with substantive content.  Jefferson’s Statute begins by declaring that “Almighty God hath created the mind free” and that religious coercion is “a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do.”  How can that declaration possibly not be an official endorsement of religion?

Obviously, the courts are not about to invalidate all of these expressions.  But how to avoid the straightforward implications of the “no endorsement” prohibition?  Inevitably, jurists resort to elusive (or illusory) distinctions and limiting devices that blunt and blur the prohibition’s meaning and force.  But these devices not only add to the celebrated incoherence of Establishment Clause jurisprudence; they turn the “no endorsement” doctrine against its own professed purpose.

Consider the most central of these devices: the “reasonable observer” addendum, which holds that the relevant perceptions that can invalidate a law are those of a hypothetical “reasonable observer.”  This addendum is probably necessary – because to invalidate every law or practice that some actual person or her brother sees as endorsing religion would be to shut down the government – but it is also perverse.  Now, when someone like Michael Newdow quite sensibly perceives “under God” in the Pledge of Allegiance or “In God We Trust” on the currency as endorsing religion and tries to litigate the issue, he will lose: that is because, the courts will explain, he is not a “reasonable” observer.  Starting with the laudable desire to protect people against feeling like “outsiders” on the basis of religion, the “no endorsement” test ends up adding insult to injury.

Of course, the “no endorsement” doctrine alienates devout citizens as well.  Many religious citizens feel marginalized by constitutional doctrines suggesting that religion must be purely private (Washington, Jefferson, and Lincoln notwithstanding) while public affairs and expressions must be secular.  These citizens will likely not be beguiled by the official fiction that equates “secular” with religiously “neutral.”  And so they also are made to feel like “outsiders” on the basis of their religious beliefs.  In this vein, Noah Feldman observes that “constitutional decisions marginalizing or banning religion from public places have managed to alienate millions of people who are also sincerely committed to an inclusive American project.”

II.

Sadly, this whole well-meant misadventure was founded on a false inference.  Proposing the “no endorsement” test in Lynch v. Donnelly (1984), Justice Sandra Day O’Connor began with the assumption that in our republic, a person’s “standing in the political community” should not depend on his or her religion, or lack thereof.  That seems right.  She then inferred that governmental endorsement of religion impermissibly lowers some citizens’ standing – by making them feel like “outsiders.”

But the inference is misconceived.  To see how, think about the “freedom of belief.”  The Court has sometimes declared this freedom to be “absolute.”  We might thus say that a person’s “standing in the political community” should not depend on what he or she believes.  So far so good.  And yet governments routinely assert things that contradict some citizens’ core beliefs:  governments endorse free market economics over socialism, war in the Middle East over pacifism or non-intervention, religious freedom over either theocracy or Soviet-style secularism.  So then suppose someone complains, “The government is rejecting my core beliefs, thereby making me feel like an ‘outsider,’ and thus lowering my standing in the political community.”  We know how to respond: “You may in fact be an ‘outsider’ in the practical sense of holding a minority or out-of-favor view, but you have the same rights to speak, vote, run for office, be tried by a jury, etc., etc., as everybody else.  In that decisive sense, you are an equal citizen; you have equal ‘standing in the political community.’”

The same logic ought to have foreclosed the false inference by which Justice O’Connor, and later the Court, slid from “equal standing” to an intractable “no endorsement” doctrine.  Indeed, we already would naturally apply that logic to, say, the out-and-out theocrat who fervently believes that some particular sect should be officially established by government.  We will reject that theocratic belief, openly and officially, but we will explain to the theocrat that he still has the same rights as everyone else.  The government can thus reject his religious beliefs and yet treat him as an equal citizen.  Nor is the point limited to the theocrat; it applies across the board.

III.

For such reasons, maybe, the Supreme Court has of late been loath to use the “no endorsement” doctrine.  Ask yourself: when was the last case actually decided in the Supreme Court under that doctrine?

In 2004, the much-discussed Pledge of Allegiance case presented a perfect opportunity to apply the doctrine.  Instead, the Court avoided the issue by extemporizing a “no standing” rationale.

The Court had another ideal opportunity to apply the “no endorsement” doctrine in the twin Ten Commandments cases in 2005.  And yet, once again, the Court managed to avoid relying on the doctrine.  The decision upholding the Texas monument was fractured, but none of the Justices composing the majority used the “no endorsement” doctrine.  In a companion case, the Court invalidated Decalogue displays in a couple of Kentucky courthouses.  But although Justice David Souter’s majority opinion quoted some language from earlier endorsement cases, the rationale for the result was not “endorsement,” but rather the absence of any legitimate “secular purpose.”

More recently, didn’t the Court employ the endorsement test in Salazar v. Buono (2010), the Mojave Desert cross case?  Not really.  In a first round of litigation, the Ninth Circuit’s decision affirming the invalidity of the cross was not appealed, so by the time the case reached the Supreme Court in a second round of litigation, the endorsement ruling was already law of the case.  And the Justices explicitly said as much, thus self-consciously declining either to affirm or deny the continuing validity of the doctrine.

IV.

At least at the Supreme Court level, in sum, the “no endorsement” doctrine has already achieved a well-deserved desuetude.  But lower courts continue to feel bound to honor the doctrine, and to do their best to implement it.  Hence the Galloway controversy, among many others.

The competing positions taken in Galloway nicely illustrate some of the difficulties discussed above.  Neither a prayer-by-prayer review nor an “overall practice” supervision like that performed by the Second Circuit seems a suitable judicial task.  Self-styled “strict separationists” might like the Court simply to declare all official prayers unconstitutional.  But such a blanket declaration would not only repudiate two centuries of pervasive practice; it would be effectively unenforceable.  Is the Court really going to tell presidents that they cannot have a prayer at their inauguration ceremonies?

So even a flat ban would be a deception, and would lead to further litigation and additional frail or spurious distinctions – between prayers or expressions that are “sectarian” and those that are not, perhaps, or maybe (as some scholars suggest) between expressions that are “public” or official and those that are deemed merely “private” (even though uttered by national officials . . . speaking as officials . . . in public ceremonies . . . on national television).

In the end, the reality is that governmental expressions resonating with religion, like most things government says and does, can be prudent or imprudent, unifying or divisive.  We always hope that government will behave responsibly.  But sometimes government or its officials (not excluding those in the judicial branch) will act and speak thoughtlessly, or offensively.  And usually, alas, the Constitution is no preventative against that possibility.  Such is life.  It would be good if the Court in Galloway could admit as much.