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A Switch In Time

Townofgreece

Members of the town council of Greece, NY, during a municipal prayer.

On May 5, 2014, the Supreme Court announced its decision in Town of Greece v. Galloway, the most prominent Establishment Clause case of this session. The punchline is that by a 5-4 vote, sectarian prayers before meetings of local governmental bodies are mostly going to be okay under the First Amendment. But there’s something a bit more important than that going on with this case.

Bear in mind what Establishment Clause law is all about. At its most rudimentary level, an Establishment case involves a person challenging the action of some unit of government on the basis that it is somehow too close to religion, or at least as often, a particular religion. Recall that the first Establishment of religion in our legal tradition is Henry VIII Establishing the Church of England. That may become important in your mind later.

And another thing to bear in mind is the First Amendment to the United States Constitution, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Most legal scholars and most judges (still including a majority of the Court) believe that the restriction on Congressional Establishment was “incorporated” to apply to the several States, and political units of those states, by way of the Fourteenth Amendment to the Constitution, in the cases like Cantwell v. Connecticut, 310 U.S. 296 (1940) and Everson v. Board of Education, 330 U.S. 1 (1947). But not all of them. That bit of knowledge will certainly be important to your understanding of today’s case, because the dispute about whether Everson either did, or could, do this is critical to the formation of today’s majority.

 

Testing Language

A long-standing point of debate amongst watchers of Establishment Clause jurisprudence has been how to test whether the Establishment Clause has been violated. Until recently, there have been three principal tests that have been used.

First, there has been the Lemon test. Until today, this was the only certain method under the law of testing whether or not a governmental Establishment of religion. In Lemon v. Kurtzman, 403 U.S. 602 (1971), a majority of the Court signed off on a three-prong test to analyze a challenged governmental activity to determine if it constitutes an Establishment of religion under the First Amendment:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster an excessive government entanglement with religion. Lemon, supra at 612-613.

If a governmental action (like enacting a statute as in Chief Justice Burger’s formulation above) fails any one of these tests, it is an Establishment, and therefore unconstitutional. The statute in Lemon dealt with Pennsylvania’s subsidy for textbooks on secular subjects given to students in religious schools, and a subsidy for the salaries of teachers who taught secular subjects in religious schools, which failed the “excessive entanglement” prong of the test because it would have required the Commonwealth to examine in some detail what the teacher was actually teaching and what the textbook actually stated. (The Lemon test was mentioned once in the eighty pages of the five opinions from Town of Greece v. Galloway — in passing, in a dissent by Justice Breyer.)

Subsequent jurisprudence gave us two different ways of looking at Establishment. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Court confronted a challenge to a municipally-sponsored Nativity scene that included a crèche. The majority of the Lynch Court found that the crèche satisfied the Lemon test as a commemoration of history and cultural tradition. But Justice O’Connor wrote a special concurrence, suggesting that the essence of Lemon, and the essence of the Establishment Clause itself, was whether or not the government was endorsing a religion. I have always found her reasoning very persuasive, even as I thought she reached a peculiar result in applying it in that case:

The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. … Focusing on institutional entanglement and on endorsement or disapproval of religion clarifies the Lemon test as an analytical device.

It’s just always seemed easier to me to understand what an “endorsement” is rather than what an “excessive entanglement” is. It’s inevitable that there will be some interaction between the government and a religious institution or people acting for religious reasons. Some entanglement is necessary: for example, the fire marshal gets to say whether there are an adequate number of fire extinguishers in the church; the church ought not to be allowed to claim a “religious exemption” to the fire code because it’s a house of worship, but it’s also a building. But the government can regulate something or act in a particular way without either endorsing or disapproving what private people might do. The fire marshal isn’t expressing an opinion about whether the church preaches the right faith or not when she issues a citation for an inadequate number of fire extinguishers.

For her part, O’Connor always considered the endorsement test to be a recapitulation, a clarification, a rephrasing, a restatement, of Lemon. But most scholars have treated it as a separate and discrete test. It was never popular with social conservatives. Still, over time, O’Connor’s idea seemed to catch on. a majority of the Court adopted it in the case of Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), a case that involved student-led prayer before a high school football game. (In exurban Houston, Texas, with all that implies about the social importance of high school football.) So I’ve considered O’Connor’s endorsement test to be good law since 2000. That is, until yesterday.

 

Coercion and Prayer

The lynchpin of many of the big Constitutional cases has been Anthony Kennedy for many years, and his was the critical vote in the case of Lee v. Weisman, 505 U.S. 577 (1992). The case involved a challenge by a student to her middle school inviting a rabbi to deliver a benediction at her graduation ceremony. Justice Kennedy initially voted that the benediction was not an Establishment, but changed his mind after reading the draft majority opinion and went on to author a majority opinion indicating that the benediction was a compulsory religious exercise, controlled and directed in its content by the school’s principal:

A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State. … Principal Lee provided Rabbi Gutterman with a copy of the “Guidelinesfor Civic Occasions,” and advised him that his prayers should be nonsectarian. Through these means the principal directed and controlled the content of the prayer. … Through these means, the principal directed and controlled the content of the prayers.

But more important was Kennedy’s finding that while “formally” voluntary, the importance of graduation ceremonies as major life events was such that attendance was not really a viable option for a student who had earned a diploma. The student’s participation in the religious benediction was therefore coerced:

One timeless lesson is that if citizens are subjected to state sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. … The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. … [T]he State, in a school setting, in effect required participation in a religious exercise.

At the time, Kennedy’s “coercion” test was met by Justice Antonin Scalia with derision, based on both historical precedent (“The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition”) and Scalia’s trademark branding of opinions differing with his as suffering from a fatal mix of vagueness, novelty, and malleability:

In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court — with nary a mention that it is doing so — lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion … Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.

Justice Scalia’s prose may be a bit purple, but he had anticipated writing the majority opinion, and he had counted on Kennedy’s vote to do it.

If you’ve noticed that in my recital of Establishment Clause tests, I’ve put a lot of emphasis on Lee v. Weisman and the coercion test articulated by Justice Kennedy, well, there’s a reason for that.

 

Legislative Prayer

Until just now, there has been exactly one case from the Supreme Court addressing the issue of a prayer as part of the agenda of a governmental body: Marsh v. Chambers, 463 U.S. 783 (1983). In Marsh, an atheist member of the Nebraska legislature challenged the practice of that body of opening its daily sessions with a nonsectarian prayer dispensed by a state-paid chaplain. This chaplain, a Methodist, made it a point to deliver “nonsectarian” prayers, referring only to “God” or “Father.”

The majority in Marsh found that prayer used to open sessions of governmental bodies doing public business had a long tradition, going back to the First Congress of the United States, which retained its first chaplain within days of introducing the text of what became the First Amendment.* Thus, the majority found that this “…unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged.”

In dissent, Justice William Brennan castigated the majority for not even trying to apply the Lemon test, and accusing it of carving out an exception to the Establishment Clause by judicial fiat: “…if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.”

kennedyandreagan

Anthony Kennedy in 1986, upon being nominated to the High Court by President Ronald Reagan.

Which brings us to Justice Kennedy’s recent opinion.

 

How The Town Council Prays

Greece, New York, is a town of about 100,000 people just west of Rochester, on the southern shore of Lake Ontario. For much of its recent history, its monthly meetings began with a moment of silence.

In 1999, a new town administrator, analogous to a mayor, was elected. The new administrator adopted a practice he had followed while serving as a county official: rather than observe a moment of silence, he would call upon a member of the community’s clergy in the room to deliver an oral prayer. The audience is asked to stand and listen to the prayer, which often contains explicit references to Jesus Christ (e.g., “Lord we ask you to bless us all, that everything we do here tonight will move you to welcome us one day into your kingdom as good and faithful servants. We ask this in the name of our brother Jesus. Amen.”). Then there is a brief ceremony in which he awarded the cleric a plaque identifying the cleric as the “chaplain of the month.” The cleric was initially selected informally and later a list of willing clerics (all of them Christians) who maintained a house of worship within the city limits was compiled and later used for selection. The clerics were never paid.

The “chaplains of the month” have been uniformly Christian until the plaintiffs in this case complained, and then the council invited a Jewish Rabbi and the chairman of a nearby Ba’hai Temple to deliver the invocation; a Wiccan priestess requested and was given the chance to pray before the council. According to the defendants, even an atheist would have been welcome, but no atheist ever asked to deliver the invocation. It appears but is not absolutely certain from the opinion that for all intents and purposes, only Christian houses of worship were to be found within the city limits, and the plaintiffs argued that by adoptign the practice of only inviting clerics from within the city, the city had effectively insured a “steady drumbeat” of Chris­tian prayer, unbroken by invocations from other faith traditions.

After some back-and-forth between the District Court (which thought that the prayers were like the ones in Marsh) and the Second Circuit (which thought that they violated in particular the endorsement test) the case came to the Supremes. Interestingly, the plaintiffs (through counsel) seemed to not call upon the Court to overrule Marsh outright. Rather, they tried to thread the needle of demanding that the prayers be like the ones in Marsh — which is to say, nonsectarian in nature rather than overtly Christian.

They lost. While it might seem that Justice Kennedy is the winner of the battle for doctrine here, it really looks to me like Justice Scalia ought to be smiling like the cat who swallowed the canary. To understand why, a closer look into the reasoning is necessary.

 

Meet The New Boss

Kennedy essentially buys in to the reasoning of Marsh that historical tradition suffices to render a seeming Establishment not an Establishment. Because legislative bodies have always had prayers, in other words, they can continue to do so — and this is not an Establishment Clause exception; rather, there is no Establishment at all.

Then, he indicates that the plaintiff’s requested relief — an order that the prayers in the future be nonsectarian — would actually be an Establishment, insofar as it would constitute a governmental figure telling a cleric how to pray:

The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfet­tered by what an administrator or judge considers to be nonsectarian.

Because the prayers in Greece are not demonstrably used to “proselytize,” meaning to suggest that one particular religion is the “true faith,” and because the prayers were not juxtaposed over the actual deliberations of public business, they are not Establishments because their content has thus far been “constrained”:

Thee relevant constraint derives from its place at the opening of legislative ses­sions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage. Prayer that is solemn and respectful in tone, that invites law­ makers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort.

As a result, these prayers are not “coercive.” Justice Kennedy insists that the proper test for Establishment is whether one is “coerced” into participating in the religious activity.

Now, I agree with the notion that once prayer is allowed at all, it’s not for the government to tell a prayergiver how to pray. This much the younger Justice Kennedy wrote in Lee v. Weisman, in which he found the most decidedly inoffensive guidelines I could imagine — basically, “keep it nonsectarian and nice in tone, and don’t sneer at other faiths” — to be an impermissible restriction on the content of speech such that the state planted its imprimatur on it and rendered a bland, pleasant blessing by a nice rabbi an unconstitutional Establishment.

Yet functionally these same “constraints” in Greece, formalized into a policy and enacted in a recurring municipal practice, are not an Establishment at all, according to the same man. In Lee, Justice Kennedy wrote that simply having to stand and be respectfully silent during an invocation to a school graduation would constitute an Establishment and violate the Constitution — but in Town of Greece, having to do the exact same thing in a town council meeting is not an Establishment and is a permissible continuation of a long historic tradition.**

The intellectual similarities of Kennedy’s opinion in Town of Greece and Burger’s opinion in Marsh are striking indeed. This makes me wonder if perhaps the plaintiffs would not have been better off going for broke and simply asking the High Court to overrule Marsh outright. It’s not like in a world where that happened there wouldn’t be prayer in public meetings — it would be like student prayer in public school now, something truly voluntary and personal to the individual seeking to pray, done either before public business got underway, or silently and in a way that did not disrupt the proceedings, and which the public entity on its own behalf would neither encourage nor prohibit. Would that really be so intolerable, even to the most devout?

 

Winning the long game.

Winning the long game?

Lemon No More?

It’s clear that a majority of the Court has just rejected the endorsement test proposed by Justice O’Connor and seemingly adopted as law in 2000. I don’t think I can call the endorsement test good law any longer. What’s more amazing is that the case of Lemon v. Kurtzman is mentioned exactly once, in Justice Breyer’s dissent. Nowhere does the majority explicitly overrule it, but the majority certainly never mentions it or attempts to apply the test in any intellectually cognizable fashion.

The year after Lee v. Weisman, Justice Scalia wrote of the moribund Lemon test:

Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and … attorneys of [litigants]. … The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, See, e.g., Aguilar v. Felton, 473 U.S. 402 (1985) (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 397-398 (1993) (Scalia, J., concurring).

Once again, it seems that Justice Scalia has killed the “monster” — only having switched his Brother Justice Kennedy over to his way of thinking, is it really, really dead this time? Today, we have only a bastardized version of the coercion test that Justice Kennedy first articulated in Lee v. Weisman, except with the definitions of its phrases filled in, and now endorsed, by the very Justice who so harshly criticized it when it was handed down. Antonin Scalia did not author any of the five opinions in Town of Greece, but his intellectual fingerprints are all over it. Somehow, he has managed to seduce Anthony Kennedy over to his way of thinking — basically only an overt command to pray or a direct tax on nonbelievers can constitute an Establishment, or so it seems. Only the “coercion” test, and that defined in a manner so narrow as to have been unrecognizable to the Lee Court, is clearly still good law.

Oh, and why does Justice Kennedy’s more recent opinion — one which so strongly resembles the Scalia dissent from Lee v. Weisman — not command a complete majority? Because Justices Scalia and Thomas have now articulated an opinion that the Establishment Clause is logically incapable of being incorporated to the States at all. According to Justice Thomas, who has apparently convinced Scalia of this opinion, nothing whatsoever stops the Town of Greece from Establishing an official religion and declaring itself a “Christian City,” or even a “Methodist City” or a “Baptist City” or whatever else a majority of its council wants. Only the political process checks against this.

Let us pray that Justice Kennedy is seduced no further by his Brethren Scalia and Thomas, for this would indeed be a scary sort of world to live in. As a practical matter, people can’t simply sell their homes, change their jobs, and move out of their communities because they happen to not be members of a locally-favored religious majority. You ought not want to live under that sort of government for many of the same reasons you ought not want to be governed by the Taliban.

The Justice Kennedy of 1992 rightly recognized that as a practical matter, students cannot but attend their graduation ceremonies, and the presence of an effectively mandatory religious invocation within those ceremonies compelled participation by nonbelievers. The Justice Kennedy of 1992 rightly noted that when a governmental entity effectively hand-selects a cleric to dispense prayer, and gives “guidelines” for what should or should not be in that prayer, the government gets its fingerprints all over the religious message and people rightly interpret this as the government telling them what they ought to believe.

The Justice Kennedy of 2014 seems not to realize that members of a disfavored minority who might have business before the local government are equally effectively coerced to participate in a religion, in the same manner as the student at the graduation who must stand and respectfully refrain from dissenting in conformity with her conscience. The Justice Kennedy of 2014 sees no Constitutional problem with a policy and practice of effectively hand-selecting clerics to dispense prayer and so long as they are “constrained” in a manner that functionally mirrors the “guidelines” condemned in 1992, proclaims that there is no Establishment problem at all.

His justification is that adults are “presumably” less “susceptible to religious indoctrination and peer pressure” than children. Thus, ceremonial prayer becomes “mere” ceremonial prayer, and an unconstitutional coercion becomes a cherished tradition. City Hall can, at least for short periods of time, become a church. One cannot help but wonder at the extent to which the fact that Justice Kennedy apparently finds the prayers in this case palatable on a personal level has influenced his decision to pronounce them congruent with the Constitution.

 

A New Attitude

The case viewed as a whole seems indicative of a powerful shift on the Court in favor of greater governmental latitude with respect to promoting religion. I hesitate to say “to the right” because it’s not quite that; “the right” does not have a monopoly on religion, and it’s not always been the case nor will it always be the case that social conservatives identify as strongly with the notion of the government participating in advancing religion in this manner as seems the case at the moment.

Consider, for instance, what would happen if the municipality in question were not Christian-majority Greece, New York, but rather Muslim-majority Dearborn, Michigan. It would be equally troublesome to see a campaign of Muslim prayers preceding the doing of public business as it is Christian prayers. So it’s entirely possible someone “on the right” might just realize that City Hall is not a church, and even if the Constitution allows this sort of prayer assisted by a public entity, that doesn’t make it a good idea. One need not be liberal or conservative to agree with the proposition that the government should be equally open to all and should send no signals to the public that any one faith is favored over any other.

And, let’s not lose perspective: the Establishment Clause is not yet as moribund as, say, the Privileges and Immunities Clause. But a switch in time changes everything: today, the ability of nearly any level of government to endorse and advance the religion favored by the political majority is much, much greater than it was the day before yesterday.

So I regret that the Court decided this case this way, that it chose to affirm rather than overrule the unprincipled decision of Marsh v. Chambers, I am particularly disappointed in Justice Kennedy in whom I had previously placed high hopes for seeing the need to limit governmental activity of this nature, and I hope that at some future date, the Justices will see fit to correct the dangerous course upon which they have placed the law.

 

* Many credit James Madison with doing this himself and therefore endorsing Congressional chaplaincies, although his private papers indicate that Madison personally objected to the hiring of a chaplain. Query how much that matters; Big Jemmy only had one vote, same as any other member of the House, and there’s no doubt that the House did indeed vote to hire a chaplain, and Congress has had at least two chaplains on the public payroll almost continuously since the 1790’s (there has never been a non-Christian chaplain for either house of Congress, by the way).

** A long historical tradition which, for the town of Greece, New York, started in 1999.

 

Burt Likko
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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140 thoughts on “A Switch In Time

  1. Aha, but there is no historical tradition of Muslim prayers in Dearborn. It is of course an utter coincidence that the only relevant traditions are those dating from the Second Great Awakening, the religion of which shall go unspecified, for that would be gauche.

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    • Is there any tradition in Islam of this kind of prayer? I’m vaguely aware of ‘standard’ Muslim prayer, which takes place at fixed times and requires specific words and gestures from those praying but does Islam also allow for prayer that.

      -Happens outside of prayer times, whenever the city council meets
      -Consists of one person saying the prayer while others are silent
      -Has everyone remaining standing or sitting, rather than kneeling on the floor bowing
      -Is done in English rather than classical Arabic.

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      • Yes – I think it’s called an invocation (Arabic: d’ua). The holy prayers (salaat) require cleansing rituals and, at least since the 1960s wave of religious revivals, additionally require Arabic.

        Interestingly, I believe that the Malaysian lower house (but not Pakistan or Bangladesh) actually goes further and just duplicates the House of Commons procedure, opening prayer and all, albeit to the Muslim faith and in Malay. Like the British procedure, members of other faiths stand but observe silence during the prayer (this sort of technicality is presumably why they have an ongoing fight over what the word “Allah” means to Christians who speak Malay). So clearly there is room for adaptability.

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      • * looking it up, compulsory attendance of the opening prayers in the House of Commons was abolished at some point, so I suppose the abolition postdates the adoption of British parliamentary procedure in the Malay colonies.

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  2. First, amazing piece, Burt. You took some heavy stuff and made it highly accessible.

    “Kennedy essentially buys in to the reasoning of Marsh that historical tradition suffices to render a seeming Establishment not an Establishment. Because legislative bodies have always had prayers, in other words, they can continue to do so — and this is not an Establishment Clause exception; rather, there is no Establishment at all.”

    This is the embodiment of institutionalized privilege entrenching itself.
    “Why can the Christians pray at meetings?”
    “Because they always have.”
    “Why have they always done so?”
    “Because we never let anyone else do so.”

    This is a goddamn shame.

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    • To clarify/elaborate, to say that you have different rules for different people because, historically, you had different rules for different people and those historic rules were founded upon bigotry, exclusion, bias, segregation, privilege, etc. is to further entrench that bigotry, exclusion, bias, segregation, privilege, etc. into law.

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      • I’ll wager that this council will be the exception that the Right used to slip in this rule. Other government bodies will somehow never find the open slots for sects who are not cozy with the ruling part.

        And I’ll further wager that none of the ‘religious freedom’ posters here will have posts on that.

        BTW, have I missed the post about the church in North Carolina suing about the violation of their religious freedom?

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  3. Burt, I think that this was a very nice write-up. I do disagree with one thing – this movement is on the right. There is very, very little activity which I’ve seen on the religious left, probably due to the fact that the religious left is not well connected to power, and that the religious left is historically not as power-hungry (mainly due to 1, IMHO). The religious right is much better-connected, and much more historically used to the idea that they get to set the rules, and to pressure people to conform.

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    • I agree that at this moment in history this is the case. Religion has been used as a tool to buttress politics in other ways in the past, as in the Civil War and Reconstruction, or the temperance movement. Melding governmental power with religious messages also been used as an instrument of entrenching racial privilege or more simply as an aid to proselytize itself. None of these are particularly “on the right” in my estimation. This moment in history will pass; already it grows stale.

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  4. Dahlia Lithwick explained this on Peska’s podcast on Slate yesterday. Her take was that Kennedy finds students/children to be uniquely vulnerable but adults just need to shut up and deal with stuff. In this case, coercion to Kennedy would probably be if someone was forced to convert to Christianity to get a housing permit. This potentially goes hand in hand with Kennedy’s occasional liberalism coming up in cases involving the developmentally disabled, minors, and LGBTQ people.

    I am also going to concur with Barry’s observation, this a huge win for the Religious Right especially Protestant Evangelicalism. Or as Slate headline writers wrote “Get ready for a lot more Jesus in your life.”

    I suspect that this is an over reach by the Evangelical community that will lead to backlash. This is the kind of coercion and interference that leads to people rejecting religion. Though it should be noted that at least Justice Thomas is openly on record as rejecting incorporation and he believes that the individual states could have their own religions if they so desired.

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      • There are probably more than enough Tal Fortgang’s to call themselves Scalia groupies to let the right be strongish for a long time.

        I’ve said it before but the if the GOP dies, it will probably be a slow death with lots of spikes of majority control. Just like someone with terminal illness can have momentary rebounds.

        You might have some info on this but Sasha Issenberg in the New Republic wrote that Generation X is significantly more conservative than the Millennial generation. Do you have any thoughts on why?

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      • Because we grew up in the Carter/Reagan years? Because most of our parents are baby boomers? Because we grew up without cable TV? Because the threat if nuclear annihilation was ever-present in our minds? I don’t really know. I don’t follow that subset of my discipline–a lot of it is more woo and journalism than true analytical thought.* We know there’s an effect–it’s measurable and has been measured–but we can only speculate about causes.
        ______________
        *Also, and this may be redundant with woo and journalism, it’s too macro for my taste.

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      • I just used him as an example because he is in the news. It was probably being too punchy in my rhetoric. He is young and might regret his current essay in 6 months to 3.5 years but I think putting him in Time probably solidified his views more.

        But yeah there is something about a publication called the Princeton Tory that demands deflating in my view.

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      • Possibly professor. I was born in the last year of Generation X or the first year of the Millennial Generation so UI feel like a go-between. In some ways, I feel more kinship and shared culture with Generation X but I am really perplexed by the Reagan worship of Ryan and Walker.

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      • I am also a bit perturbed that most of the news involving Jewish-Americans lately seems to involve them saying or doing very obnoxious things. There is Dan Snyder refusing to change the name of the Redskins, there is Sheldon Adelson holding court for GOP politicians and having them kiss his ring (this is relatively minor), then there was Don Sterling (though Adam Silver might also be Jewish), and now Tal Fortgang being an unaware bro-dude and being rewarded for it.

        As I mentioned before, Jews are overwhelmingly Democratic and liberal. Why is it that right-wing Jews (a minority in a minority) are getting all the attention and getting it very loudly?

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      • On this Tal Fortgang dude, is right; all the shit being dumped on this kid will only strengthen his belief. Which on the one hand maybe doesn’t matter much. Another dudebro in a world of dudebros. Dime a dozen. But still, I would rather have seen more “high road” on this, mostly on account of his age. (At thing at that point in my life I was still reading Ayn Rand. One should make allowances.)

        I mean, he deserved to be criticized, and soundly — check your privilege, dude! — but the abuse? the threats to his family? (if that guy in the other thread was telling the truth, which I find believable) on and on?

        I dunno. Could have gone better.

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      • In my experience and observation, many evangelicals especially right-leaning ones refer to themselves as Christians. They do so in a tone that excludes more mainline, non-Evangelical forms of Protestantism like the Lutherans, Episcopalians, Unitarians, Quakers, Methodists, and especially Roman Catholics and Mormons. The message seems to be you need to be Evangelical or you are not Christian.

        “Are you a Christian?” almost always means “Are you Evangelical?” in the U.S.

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      • Saul, sure, I get that, but that really addresses DRS’s comment, not mine.

        The American conflation of Protestantism (or, to use the better term, Reformed) with Evangelicalism is… interesting?… odd?… unique? (American) Evangelicalism really more a separate branch of Christianity than a Reformed denomination. I don’t mean to critique one branch or another (ain’t none of us going to have all the right answers!). The distinctions are useful for understanding each branch. The American trend of lumping ’em all together is muddying and less than accurate.

        And don’t get me started on the conflation of “Evangelical” and “evangelical”!

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      • Jonathan, I think it’s a combination of two things: 1.) most people have no earthly idea how to distinguish Evangelical from fundamentalist from other breeds of Protestantism, and 2.) “Evangelical’ has become a politically-charged label, so everyone’s heard it.

        And with respect to (1), who can blame them? I mean, in some sense fundamentalists are a special case of Evangelicalism, though most Evangelicals I know bristle at being associated with fundamentalists. My parents’ minister when to the Dallas Theological Seminary, which is like the fundamentalist seminary in the states, and he considers himself an Evangelical (and a dispensationalist), and I think I can tell the difference between his views and a dispensationalist fundamentalist, but only because I look hard. On the other hand, how am I supposed to tell the difference between fundamentalist Baptists and Nazarenes, who look even more hard-line and literalist much of the time, but are generally considered Evangelicals?

        So given that the vast majority of the people here have no idea what “Evangelical” even means, they just substitute it for “Conservative Christian,” and figure the liberal Lutherans in Minnesota don’t count.

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      • Yet, generally, people can keep Roman Catholic, Orthodox, LDS and Reformed separate.

        My beef is actually more with reporters who cover religion (and especially those who specialize in it) not being able to tell the difference between some pretty basic concepts (like the difference between “evangelical” and “Evangelical”, let alone between Reformed and Evangelical) than with general use.

        Of course, that’s a beef we can have about reporters in various fields, not just religion.

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      • Well, Roman Catholic, Orthodox (though try explaining different Orthodox traditions — Russian, Greek? Wait, there are others?), and LDS distinguish themselves on multiple obvious dimensions. Catholics? Got the Pope. Orthodox, got those funny costumes. LDS, got that funny underwear, and that funny extra book. But how do outsiders distinguish between Baptists (and Southern Baptists), Pentecostals, Nazarenes, Seventh Day Adventists, Methodists, and so on, without understanding some basic theology which, let’s face it, most every Sunday Christians don’t really understand, because it’s just been fed to them in a dumbed down, preached from the pulpit and reinforced in Wednesday Bible Study format. I mean, if I talked about dispensationalism with the people I ran into on the street today, I’d get a bunch of crazy looks, and if I then mentioned reformed as a contrast, they’d probably just walk away.

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      • I’d add that many of the people I know who have heard of things like pre-millennialism and dispensationalism and so forth know them, or their competitors, primarily in contrast to each other, with one being good (and little else) and the other being bad (and little else).

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      • “Evangelical” is a particular movement/set of churches within Christianity. But “evangelical” (small-e) is basically just spreading the good news, shall we say. It’s just the same way we use evangelical or evangelism in the secular realm (like tech evangelists). It’s an adjective. I think most Christians would be evangelical, though not necessarily Evangelical.

        Think of it like “liberal” vs. “Liberal”. In Canada, we have the Liberal Party. So being a Liberal means being a part of the Liberals. However, being a “liberal” would have a non-partisan meaning. So you could be liberal but not be a part of the Liberal Party (in fact, you could oppose the Liberal Party and still be a liberal).

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  5. This ruling appalls me, from both a citizen and a Christian perspective. From, the citizen’s perspective, O’Connor’s critique of endorsement is spot-on. There’s not true equality when the government persistently sends signals that it favors group A’s faith over group B’s.

    From the Christian perspective, the persistent desire of American Christians to make government an instrument of the church is blasphemous.

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  6. I’m just awaiting for an outbreak of the prayer wars; where public meetings have the first hour or more taken up by a string of prayers from sects jumping on board to proselytize to the attendees.
    This will open up a whole new era in public speaking, and there will be listicles of the 10-best public prayers.

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    • IMHO it won’t work that way, in general. Those sect with clout will get the prayer times, and those without will always get booted a few months down the schedule/lost their request/not really a religion/not representative/divisive/etc.

      With the occasional Kinsley gaffe, ‘this only applies to Christians’.

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      • When a lawsuit was filed against my city for a program very similar to Greece’s, I was asked about whether we should sign up our local freethinker’s group as a participant in the local invocation program, so as to demonstrate that non-believers are members of the community as well and see if we’d be welcome.

        I said that I wouldn’t do it, because participating in the prayer program implies that it’s okay to have the prayer program in the first place. I didn’t want to be the “token atheist” that they called on as part of the 1% of non-Christian prayers that would legitimate the “steady drumbeat” of Christianity upon which the City Council has chosen to place its imprimatur.

        I still maintain that position today, notwithstanding that I’ve no choice but to accept the Supreme Court’s ruling in Town of Greece that the prayers are Constitutional. Just because the Constitution allows the City to do this does not mean that the City ought to do it. I still think the prayers are divisive and as I’ve written elsewhere in this comments thread, I still think they are a signal from members of the power elite that members of “out” groups are not welcome in our City Hall, and tolerated only begrudgingly when they demand to be or must be present for some reason. And I’m not going to be the “token atheist.” I’d hope, , that your friends are not allowing themselves to become the “token Wiccans.”

        (With that said, on those occasions when I’ve had professional dealings with the City’s administrative staff, they have been unfailingly professional and pleasant.)

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      • I know this artist who did a data-scraping project. He signed up to a bunch of different on-line dating services, and made interactive maps of the most commonly used word for in people’s profiles for each zip code; in essence, the word that describes how people see themselves and what they want to project to the in seeking companionship.

        This town, that word was Wiccan. They go dance in the moonlight, the moon sisters. They’re not token anything, they are.

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  7. I find it personally kind of offensive to be forced to stand in a governmental situation and have someone pray to Jesus on the behalf of the governmental body. I do not believe in Jesus as a God, and in such a situation, it is hard to register my dissent.

    (It’s not a problem if I am in a church, as my “not being part of the church” is readily ascertainable by anyone who cares).

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  8. I don’t know exactly who the different parties were in this case, but what would the government/court’s response be if a citizen were to say, “I do not feel welcome at these meetings?” Would they basically tell him to go sit on it?

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  9. Most legal scholars and most judges (still including a majority of the Court) believe that the restriction on Congressional Establishment was “incorporated” […] But not all of them.

    Gosh, which justices could hold position so antiquated, out-of-the-mainstream, and conducive to bigotry? I can’t imagine.

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    • It’s worth pointing out that the entirety of the Bill of Rights has never been incorporated through the 14th Amendment to apply to the states. So for any particular liberty, its not entirely illogical–in legal/constitutional logic anyway–to dispute it.

      (For the record, I’m an advocate of total incorporation, although I understand why the Court has never adopted that approach.)

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      • (For the record, I’m an advocate of total incorporation, although I understand why the Court has never adopted that approach.)

        Pre New Deal jurisprudence could have easily handled all of this without having to go through the headaches of attempting to identify which rights are fundamental and which ones are not.

        No specific rights were identified in Meyer v Nebraska and Pierce v Society of Sisters although it’s clear as can be that both cases involved privacy rights despite the incorrect way both cases were portrayed in Justice Douglas’ correct but hideously reason garbage opinion in Griswold v Connecticut.

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      • If the fourteenth incorporates everything that came before it and after it to the states, then let’s stop picking and choosing which ones. It either does or it doesn’t. If it does, just rule on it already. The idea that it doesn’t incorporate the first but it does incorporate the second, which Scalia seems on board with when you put this decision up with Heller, is just… weird.

        Scalia likens Lemon to a useful beast, but the fourteenth is treated the same way.

        If it’s correct that the fourteenth does incorporate the second but it doesn’t incorporate the first, for some oddball freakin’ reason, then g’head and let’s get that settled so that states can start passing establishment laws (and limit association, and all that other good jazz) and then we can put that to the legislative and judicial test.

        I for one would be hugely entertained to hear Scalia explain why it’s perfectly okay for Louisana to pass an establishment law but it’s not okay for them to restrict gun ownership.

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      • @patrick–OK, I’m with you that far. But I’m still puzzled a bit by “the results need to be hammered out via legislation.”

        @dave–Oh, sure I’ll go for a late rescuscitation of the privileges and immunities clause. But as a pragmatist, I find that less likely, and I think both routes are valid.

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      • My problem with incorporation as it’s practiced today and best articulated in Footnote
        Four of Carolene Products is that it throws unenumerated rights (like privacy rights) under the bus, except when the Court decides not to throw them under the bus like it did in the Griswold – Eisenstadt- Lawrence line of cases.

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      • Sure, but total incorporation–the Bill of Rights lock-stock-and-barrel–would include the 9th Amendment, with its reminder that (contra Scalia, the alleged textualist/originalist) unemuerated rights are just as real.

        (Scalia loves to mention his devotion to the Federalist Papers as the guide to interpreting the Constitution, but he always overlooks the fact that the only real mention of the Bill of Rights–which didn’t even exist yet–was Hamilton’s warning that if you create a list of rights, some fools will interpret the list as exhaustive.)

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      • I for one would be hugely entertained to hear Scalia explain why it’s perfectly okay for Louisiana to pass an establishment law but it’s not okay for them to restrict gun ownership.

        Wouldn’t it be the standard crap about how the 2nd is an individual right but the establishment clause is a state right?

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    • Gosh, which justices could hold position so antiquated, out-of-the-mainstream, and conducive to bigotry? I can’t imagine.

      Geez. I reject incorporation AND Plessy v Ferguson. How did that happen? Oh, did I mention I support overturning SSM marriage bans on 14th Amendment grounds? How can I do that without embracing incorporation?

      Me thinks some people lack my theoretical basis.

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      • If I didn’t know you and respect you the way I do, I would put the question back to you and force you to answer it yourself. I’d like to think that I left enough clues to make that a no-brainer.

        In the spirit of cooperation and the very good possibility that I could be wrong about what I just said, I will tell you that I categorically dismiss them as an unconstitutional use of the state police power.

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      • ,

        Please keep in mind that I think that most of the major Establishment Clause cases going back to the Warren Court era were rightly decided. I don’t think this one was, but given that Marsh v Chambers was already an existing precedent, I don’t have the same level of outrage that other do nor do I think this represents a significant victory for social conservatives.

        When we get to overturning cases like Engel v Vitale or Lee v Weisman, then I’ll start to worry.

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      • It wasn’t intended as a gotcha. I go from the 1st via incorporation to “state churches are unconstitutional”. I don’t see how to get there without incorporation. (Thomas and Scalia don’t get there, specifically because they reject incorporation.)

        So, I’ll ask again: what’s unconstitutional about state churches?

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      • It wasn’t intended as a gotcha. I go from the 1st via incorporation to “state churches are unconstitutional”. I don’t see how to get there without incorporation.

        I know it wasn’t but being the facetious SOB I am, I can’t help myself sometimes.

        I can’t say I’m necessarily correct in my own views but I take the Randy Barnett/Richard Epstein approach to the police power of the states (more Barnett). I get to that argument by suggesting that the proper role of the state police power is to address matters of public health, public safety and the general welfare. Any red flag to me is legislation that aims to favor or burden one group at the expense or benefit to another, especially when that regulation does not seek to remedy a specific problem (i.e. working conditions in mines leading to maximum hours laws for miners – see Holden v Hardy).

        As far as I’m concerned, establishing a state church has nothing to do with public health or public safety. As far as general welfare is concerned, the benefits largely accrue to the members of that church and could possibly burden other churches and their members. Such legislation seeks to benefit a certain group without providing any valid reason why that group should receive those benefits from the state.

        It’s not unlike the way Lawrence v Texas was decided. No one could come up with a valid reason for the law. The method is more based on the due process jurisprudence of the late 19th-early 20th Century.

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      • ,

        But often the police power is defined as the power to protect the health, safety and morals of the public. It’s not that I dislike your outcome, but I’m not sure that we’re not just cherrypicking parts of the police power we like and retconning the whole thing.

        It’s clear that until the 14th, states could enact establishments, so we have to get the ban through the 14th or not at all. So if the 14th limits the police power to regulate morals, the question is how it does so? (Or, what’s the stronger route by which it does so?)

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      • But often the police power is defined as the power to protect the health, safety and morals of the public. It’s not that I dislike your outcome, but I’m not sure that we’re not just cherrypicking parts of the police power we like and retconning the whole thing.

        Yes, that is a very fair point, and I tend to include that with general welfare (although I probably shouldn’t since the exclusion raised a red flag when you read it). I remember reading a series of blog posts several years ago between Tim Sandefur and another person on this very issue. It was after Lawrence v Texas was handed down. If I recall, the morals language referred to public morals, laws that regulated the behavior of people in public spaces and towards others. Prohibiting a consenting couple from performing sex acts in public is a valid exercise under the public morals banner. However, prohibiting a consenting couple from doing the same in the comfort of their own home is not.

        I think the history gets a bit messy. Even though the principles which lead us to certain conclusions today (i.e. Lawrence v Texas) had their origins in the 19th Century or even earlier, civil liberties jurisprudence (for lack of a better term) is a 20th Century doctrine. I don’t think a 19th Century court would have ruled that way mostly because the Court, even after the ratification of the 14th Amendment, stayed very cautious about the prospects of centralized power and did so until the New Deal-era. I know that belief goes against the grain of the supposed laissez faire nature of the Lochner-era court but that theory needs to be shot and buried.

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  10. I have trouble distinguishing between “a public prayer” and “a public speech”.

    If a guy stood up and said “May we do good today, may we help the helpless, feed the hungry, heal the sick, and lay the smack down upon those who dreadfully need it.”, that strikes me as something that would be cool.

    But if a guy stood up and said “God, May we do all of that crap”, suddenly it stops being speech and starts being prayer and transubstantiates into something that mimics speech that we *CAN* ban?

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      • So the argument is that politicians (or their representatives) don’t have free speech?

        No (and Kim is wrong). The argument is in two parys. One part is that their actions in an official capacity are government actions, and there are certain things government may not do. The second part is that the inclusion of appeals to God in a speech make the speech religious in nature. These may be fine distinctions, but they are important nonetheless.

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      • Dude, I have no problem with Senator Joe Blow from Bumfuck Egypt, Iowa telling us all about his faith, or praying to the cameras. The issue is not whether politicians (or their representative) have free speech, it’s whether they endorse that faith in their official capacity by, say, making only Christian ministers “official chaplains” or having only Christian prayers at official government meetings/hearings/whatever.

        So again, guy, any guy, including Senator Blow, stands up and says a prayer: awesome.

        Guy in his official capacity as a representative of the government says a prayer as the official prayer of the government or of that government meeting: not awesome.

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      • Jay, it might help to think about it like this:

        If your neighbor’s a cop, and he knocks on your door one day in shorts and a Hawaiian shirt and says that if you don’t move the limbs you cut that landed on his property, he’s going to do something about it himself, that means one thing, but if the same guy pulls you over in uniform, driving a squad car, and he tells you that if you don’t get out of the vehicle, he’s going to do something about it himself, it means something else entirely. When a person, any person, wields the authority of the state, then while doing so what they say means something different than if they say the exact same thing while not wielding that authority. So while wielding that authority, their speech is limited in certain ways, specifically in ways laid out by the very same amendments that provide us things like freedom of speech, freedom of religion, and so on.

        Put differently, if people in their capacity as the wielders of state power are not limited in their speech in some ways, then the state itself is not so limited, and as a result the only people who have true freedom of speech or religion or whathaveyou are the people yielding the power of the state.

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      • Oh, I completely understand the argument that people in authority should have their power to coerce others limited.

        I just don’t see the difference between a public prayer and a public speech and having it pointed out to me that the guy giving the speech is wearing dumb clothes and opened his speech by addressing an entity that, to the best of our knowledge, doesn’t exist is something that, I suppose, makes sense how someone else might make that distinction…

        But it still looks like speech to me.

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      • I just don’t see the difference between a public prayer and a public speech

        I’m having a hard time being sympathetic to this alleged difficulty. The Constitution itself distinguishes between speech and religion by referencing them discretely. There’s also the fact that one is just talk while the other purports to be a holy/sacred act.

        The fact that there is no god doesn’t really change any of that dynamic. Once again you seem to be in that special Jaybird place where nobody else can follow.

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      • I see a juxtaposition.

        Many of the rights of the religious to evangelize are protected by their rights of speech rather than their rights of free exercise. To the extent that a prayer is a form of communication between people, it is speech — and the legislative prayers at issue in this case are very clearly, at least in part, intended to communicate something between the people at the meetings. What that communication is might be ambiguous, whether it’s “It’s important that we are all solemn and work towards the good,” or “We’re the in group and you’re the out group, neener-neener-neener” or something in between or a cocktail of the two, it’s still a communication between people.

        To the extent that a prayer is also a communication to, or communion with, the divine (whether real or imagined is, as the good professor notes, wholly irrelevant) it might be considered something other than speech. A prayer made silently to oneself would be purely in this category. A prayer made out loud is both that internal orientation of oneself to one’s faith as well as a communication to others who hear and observe the prayer.

        The First Amendment also speaks of a “freedom of the press” as if the press did something other than engage in “speech.” Speaking is also inherent within a petition for redress of (alleged) grievances.

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      • Once again you seem to be in that special Jaybird place where nobody else can follow.

        Fair enough. Feel free to stay where you are.

        Are there books that can be censored because they are “religious”? Or, at least, prevented from entering the public sphere?

        To the extent that a prayer is also a communication to, or communion with, the divine (whether real or imagined is, as the good professor notes, wholly irrelevant) it might be considered something other than speech.

        But might there be room for this communication to be considered speech?

        Because it would make sense to me to say “yeah, we’re banning certain kinds of speech from the public forum” (Even as I’m pretty sure that that would be Unconstitutional) but saying “oh, yeah, we decided that prayer wasn’t speech” strikes me as a shenanigan.

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      • Are there books that can be censored because they are “religious”? Or, at least, prevented from entering the public sphere?

        You’re mixing up your religion clauses. Better to ask whether the government can publish religious books.

        Dude, I’d happily try to follow you to wherever you are to try to understand your point, but you don’t give a person much help.

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      • “oh, yeah, we decided that prayer wasn’t speech”

        Nobody’s really saying that. It’s just that it’s different enough that it falls into its own category. Not absolutely all speech is allowed–we don’t allow slander, we don’t allow threats. We also don’t allow government sponsored prayer-speech, although we get there by a different route.

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      • So prayer is merely similar to slander or threats insofar as it is speech that we can ban in public places?

        So stuff like Article I, Section 6, Clause 1 wouldn’t apply at all to Congress (nor, would similar state Constitutional clauses apply to state constitutions nor all the way down)?

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      • I mean, it’s not like I would possibly think that that particular clause could have been used to protect something like an opening prayer at a meeting. It was just when it was pointed out to me that prayer is speech like threats or slander is speech that I remembered that we have a specific part of the constitution that protects Congresscritters from being arrested for stuff (like threats or slander) that they say on the floor.

        It’d be weird if we agreed that the only unconstitutional thing that might be said on the Senate floor is a prayer.

        I mean, I can understand not liking it. I can understand finding it distasteful. I can understand going out of one’s way to make sure that people from all different religions have a shot at opening prayer, come one come all.

        I can’t understand banning it. Certainly not banning it based on the First Amendment.

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      • Erm, no. It’s more that you’re saying that prayer is similar to X or Y (something that it wouldn’t occur to me to compare prayer to, but whatever) and it seems to me that there’s a thing in the constitution that covers both X and Y.

        Which is, of course, interpreted as performance art.

        To restate my argument, it seems downright obvious to me that the vast majority of folks giving prayers in public, in front of a lectern, with a microphone, in front of a crowd, are *NOT*, in fact, talking to God As They Understand Him but giving a fairly ritualized speech.

        The arguments against this that I’ve seen so far are of the form “prayer is a subset of speech that we can ban” and “how in the hell can you not see that they’re two entirely different things, you freaking troll?” and neither one of those counter-arguments really feels like it addresses how this ritualized speech is something that, of course, the government can prevent from taking place to the point where everyone is nodding about how awful the 5-4 supreme court ruling was.

        I’m not saying that I *LIKE* prayer or that I feel included when people give prayers or that I think it’s good for the various places that do stuff like pray go on to do so.

        But it also seems to me that it is speech and, as speech goes, isn’t particularly like threats or slander (and, hell, even if it was, there’s a part in the Constitution that covers that sort of thing) and if we don’t like the Constitution, hey, we don’t like the Constitution… can we at least *AMEND* it rather than argue that it allows us to ban speech we don’t like?

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      • My point, quite clearly I think, is but that prayer should be banned, nor is it that it is not speech. My point is that prayer contains religious content, so in addition to the speech part, the religious part of the first amendment is relevant. And even it looks like the state endorsing the religious content, by say only inviting Christian prayer leaders, the first amendment is clearly being violated. Not letting them get away with establishing an official religion by claiming they’re just speaking is not a violation of the speech clause.

        If I could say that any clearer, I would. So I will just leave it with that and hope that if you still see my position as fitting one of the descriptions you give since (threats and banned), I’m just going to have to hope that it’s clear to others that I’m not saying anything like that.

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      • Jaybird,

        As usual, talking to you is not like talking to someone with normal thought processes, and I’m not up to the task.

        I do wonder if you are able to understand why people find your approach so frustrating, or if it seems so normal to you that you wonder why others can’t see what you’re seeing.

        That’s as nice as I can be about it. It was an effort, requiring numerous rewrites and deletes.

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      • Then we should find the original law that pays for, for example, the Chaplain position in Congress/Senate and sue the Federal Government for violation of the First Amendment given that the Chaplain position, itself, is an example of Congress passing a law respecting an establishment of religion and get rid of that particular position.

        It seems to me that the Chaplain position being paid for violates the First Amendment. Sure.

        After that, however, it seems to me that there is a conflict between “well, should we let this guy say what he’s going to say” and “well, should we not let this guy say what he’s going to say” and I’m a big fan of erring on the side of letting the guy say his piece.

        But if we want to say that Congress is respecting an establishment of religion, it’s in the fact that it’s paying for the position in the first place.

        Then we only have to overcome the whole “since 1789” thing.

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      • Well, I’m an anti-fan of Stare Decisis so just because “there’s a precedent for doing this” strikes me as a nice way of saying “but it’s already been screwed up for so long anyway”.

        With that said, arguing that a state government that happens to be following similar protocols to the federal government is doing so unconstitutionally is a tough row to hoe.

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    • I think there is a difference between saying, “We will now open up the floor to any and all comers,” and saying, “Here is a priest we invited and who will be the only one allowed to speak during this time.”

      Also, the 1st swings both ways. We offer religious beliefs all sorts of unique privileges we don’t allow other beliefs. It doesn’t seem completely unreasonable that those privileges are balanced with responsibilities or limitations.

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    • A legislative prayer is different because it is directed to the legislatures and citizens do not bring business before Congress. They sit in the gallery and are generally ignored by the person giving the prayer. For municipal meetings, the clergy directs and orders citizens to stand-up and pray and it seems to be explicitly Christian more often than not.

      Imagine you were Jewish, Muslim, Wiccan, or Atheist, and needed to speak at the meeting in order to get a building permit or some other need. Would you feel comfortable not standing during this sectarian prayer?

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      • This was my thought, based on my time on the staff for my state legislature. The public’s role when the legislature meets in chamber is purely as observer of the process — if you try to participate more vigorously, the sergeant-at-arms will remove you. As Burt noted, in Marsh the plaintiff was a member of the legislature, not a member of the public. I stood to be polite if I had business with a member at the beginning of the day and was there when the prayer was offered; some staff waited outside the chamber until the prayer was done.

        Whether by tradition or more coercive leaning on the clergy, the prayer here is generally a request of a higher power to help the members be civil, tolerant, and make good decisions. All sorts of higher powers — the Native American ones were always particularly interesting.

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      • Saul & Michael C, what is a city/town council but a legislature? We are complaining about some SCOTUS members rejecting incorporation out of hand, but if a local government says ‘ok, we’ll do it exactly as the federal government does’ we also reject that?

        If one maintains, ‘well the people have business before the council, unlike the state and federal legislatures’, for one, one is then gives the council an incentive to say ‘ok, nobody but council members are allowed to speak at council meetings’ – and then everything would be kosher.

        For two, maybe state and federal legislatures *should* have more public comment time.

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      • Imagine you were Jewish, Muslim, Wiccan, or Atheist, and needed to speak at the meeting in order to get a building permit or some other need. Would you feel comfortable not standing during this sectarian prayer?

        For the record, as a lapsed Catholic, I would feel eminently comfortable remaining seated during a Christian prayer, myself, simply as a moment of protest.

        But I recognize this is not a universal sentiment.

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      • My state legislature, at least, has lots of comment time — in committee meetings. Any member of the public who wants to comment on a piece of legislation is free to do so. For particularly contentious bills, a committee may have meetings in several parts of the state to make it easier for the public to be involved. The committees don’t do prayers.

        The city council for my city, roughly the same size as Greece, NY rolls all of its responsibilities — public testimony, passage of laws, and in some cases administration of those laws — into a single meeting, with prayer. An atheist or Wiccan bar owner, at the meeting to get final approval of her liquor license, runs the risk of offending the people who vote on that approval if she remains seated during the overtly Christian opening prayer.

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      • There is manifest and readily-identifiable harm that arises from governmental entities articulating religious faith in this fashion. I experience it myself.

        I’ve refrained from “outing” myself as an atheist to a governmental entity that I represent. The board members and the high-level staff are all quite religious and many of them attend the same church. Several have partaken of the Kool-Aid and can’t figure out why other people seem less than enthusiastic about the upcoming Palin Administration. They recite the Pledge of Allegiance (revised version) with great alacrity and so far haven’t noticed that I don’t say those two extra words that got inserted in the 1950’s.

        I fear being asked about my religion directly, lest I lose their business. Thus, my livelihood is placed at greater risk than would a similarly-situated person of similar-enough faith as the elected officials.

        Secondly, as part of my periodic frustration with seeking judicial appointment, I might have taken up a more overtly political path for my career than I have and have at times considered volunteering for civic organizations and perhaps standing for election to local boards. But my city has a policy and practice substantially similar to that of Greece NY’s, implemented by the local Powers That Be. The prayers during the city council and municipal planning commission meetings are obviously part of a package of signals broadcast by the reigning power elite here that a person must be recognized as One Of Us before that person will be invited in to any meaningful governmental activity, or tolerated beyond the level of Officious Intermeddler should they be dense enough to show up anyway.

        Consequently, I do not participate in the governmental affairs of my city, although in an environment more inclusive than reality, I would probably be quite active in the local civic life. I am that much less of a citizen because I am not welcome to participate in the local civic government.

        And I can whine about it here on a blog because not all that many people in my community know of my bloggy pseudonym.

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      • While I was drawing the line on a different basis in my head, yeah, you’re right. But that’s because it’s much harder for a small body to demonstrate that the prayer is ceremonial/tradition, rather than reflecting policy, than it is for a larger body. The Colorado state legislature in Denver can easily call on people from dozens of sects to deliver the opening prayer; the county commissioners in one of Colorado’s rural counties that only has one church within 60 miles of where they meet has a more difficult time.

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  11. Patrick

    “Generally speaking, aligning religion with politics is a dicey business.

    They are at best allies of convenience, and at worst parasites upon each other.”

    Actually, no. ‘The eternal alliance of throne and altar’. There might be tensions, but they reinforce each other wonderfully.

    Note that I’m talking about ‘religion’. Actual service to God, etc., is an entirely separate matter.

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    • ‘The eternal alliance of throne and altar’. There might be tensions, but they reinforce each other wonderfully.

      That’s one way of looking at it. The other way is that they feed right into each other’s drawbacks in a way that, yanno, historically speakin’, don’t work out too well in the long run.

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      • Me: “‘The eternal alliance of throne and altar’. There might be tensions, but they reinforce each other wonderfully.”

        Patrick: “That’s one way of looking at it. The other way is that they feed right into each other’s drawbacks in a way that, yanno, historically speakin’, don’t work out too well in the long run.”

        Well, my way is looking at how well it worked, historically.

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  12. I just re-read the concurring opinions at lunch. In particular, I want to call out a section of Justice Thomas’ concurrence, in which he reasons that the Establishment Clause simply cannot be logically incorporated. After noting that at the time of adoption of the Constitution and ratification of the First Amendment, many of the states had Established churches or had delegated Establishment to municipalities, Justice Thomas writes:

    Unlike the Free Exercise Clause, which “plainly protects individuals against congressional interference with the right to exercise their religion,” the Establishment Clause “does not purport to protect individual rights.” Newdow, 542 U.S., at 50 (opinion of THOMAS, J.). Instead, the States are the particular beneficiaries of the Clause. Incorporation therefore gives rise to a paradoxical result: Applying the Clause against the States eliminates their right to establish a religion free from federal interference, thereby “prohibit[ing] exactly what the Establishment Clause protected.” Id., at 51 ; see Amar 33-34.
    Put differently, the structural reasons that counsel against incorporating the Tenth Amendment also apply to the Establishment Clause. Id., at 34 . To my knowledge, no court has ever suggested that the Tenth Amendment, which “reserve[s] to the States” powers not delegated to the Federal Government, could or should be applied against the States. To incorporate that limitation would be to divest the States of all powers not specifically delegated to them, thereby inverting the original import of the Amendment. Incorporating the Establishment Clause has precisely the same effect.

    He goes on to indicate, albeit somewhat in passing, that the political climate of the nation changed between about 1800 and 1830 such that Establishment was unpopular and thus each state voluntarily Dis-Established, with “voluntary” meaning that they did so despite the absence of any judicial order compelling Dis-Establishment.

    Justice Thomas adopts a fundamentally different vision of the relationship between governmental power and individual rights than I understand to be the case. With all respect to the Honorable Justice, I simply don’t understand the notion that the government can have its power limited despite the lack of an individual right. The boundaries of governmental power are defined by rights; they necessarily mirror one another because they define one another.

    The fundamental issue of any Constitutional law issue is, either the government may do thing “X” or it may not. In Town of Greece it’s either the town can have prayers, or it cannot. If it cannot, it’s because doing so exceeds the town’s powers, meaning that inherently holding prayers violates the plaintiff’s individual right. As defined by this case, that right is the right to not be coerced to participate in the religion favored by the government, and thereafter the Court found no compulsion in this case. I disagree that “compulsion” is the appropriate test (“endorsement” is the better one, particularly in light of the imperative to preserve individual autonomy that is what having a “right” is all about) and I disagree that there was no “compulsion” here. But more to the point, even accepting the majority’s use of the narrower test and passage on these facts, I don’t understand Justice Thomas when he says that there is a “right” of a particular State to Establish. The idea of a state having rights is meaningless to me.

    Now, I can understand the notion that a State might be said to have the “power” to Establish, but I can’t wrap my head around the idea that this is federalism at work — particularly given that every other bit of the First Amendment concerns itself with what Thomas acknowledges are individual rights, but more generally given that the Constitution, as a whole and in each of its discrete parts, defines the substantive and procedural limits of governmental power. Federalism is a distribution of power between the national and state governments, individual rights are limits on the power of any unit of government to do a particular thing.

    Maybe this isn’t textualism anymore. But I’ve dug myself in to the notion pretty solidly and I don’t see any need to alter the view.

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  13. A quick editorial note: I published the Roy Moore featured piece half a day after Burt published this, thinking that we had two featured pieces to run today. Had I known that we wouldn’t, I would have left this up top longer, so I fudged the time stamps to put it back up top. As it should be — it’s a freakin’ well researched piece.

    Hoping this doesn’t cause confusion with readers.

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  14. Dave, a search ‘https://ordinary-times.com/?s=North+Carolina’ failed to turn it up (BTW, I had actually searched before I asked, to avoid unnecessary embarrassment).

    The reason that I keep harping on this is because right now, ‘religious freedom’ means ‘right-wingers get to do what they want; liberals are f*cked’. For example, employers with right-wing beliefs get exemptions from laws and employees with right-wing beliefs get exemption from the right’s usual employer uber alles policy.

    Here we have a clear-cut, 100% case of pure religious freedom, and haven’t seen the usual ‘religious freedom’ groups helping.

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