Nahmod Law

I spoke on August 6, 2014, about the Supreme Court‘s Town of Greece town meeting legislative prayer decision at the National Conference of Jewish Lawyers. In my remarks I situated Town of Greece in Establishment Clause jurisprudence in addition to commenting on it.

What follows is the outline of my remarks. I hope you find them interesting.

You might also want to check out my related YouTube videos (search “sheldon nahmod”) as well as earlier posts (search “religion”).

The text of the first part of the First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; [speech, press, etc.]

Two purposes of the Establishment Clause

Purposes of the Establishment Clause: (a) protecting government from religion because religion is ultimately based on faith and what is sometimes called passion, while self-government is supposed to be based on reason and practical judgment; the European and probably worldwide historical experience (and the theory) is that faith and passion distort and perhaps corrupt government (recall the divine right of kings) and are a danger to it; (b) a less-often remarked on purpose of the Establishment Clause is to protect religion from government (this is a major purpose of the Free Exercise Clause as well); if one religion captures government, other religions are in danger; more subtly, as especially in connection with government financial support of religion, religious bodies sometimes find themselves having to comply with government conditions that may be inconsistent with their religious beliefs (behavior modification or bribery).

Two very different approaches to the Establishment Clause

Jefferson’s wall of separation metaphor as set out his letter in 1802 to the Danbury Baptist Assn; Madison, the draftsman of the Bill of Rights, agreed—see his Memorial and Remonstrance and Jefferson’s and Madison’s joint support of the Virginia bill mandating religious freedom; this is the Enlightenment model that emphasizes the private-public distinction in connection with religion; alternatively, and more prominently these days, the morality-based accommodation model (supported by George Washington and John Adams); but all agreed with the principle of neutrality which meant at the very least that government may not prefer any particular religion over others. Core principle: government may not create a church or directly fund a church. Overall question: the proper role of religion in the public square.

Three controversial areas in Establishment Clause jurisprudence

Three historically controversial areas in Supreme Court Establishment Clause jurisprudence: prayer (especially school prayer, but including legislative prayer), school funding (aid to students in religious schools, aid directly to religious schools and school vouchers) and government religious displays (creches, menorahs, Ten Commandments and crosses); it is fair to say that in the last two decades especially, the move in the Supreme Court has been to greater governmental accommodation of religion in the areas of school funding and government religious displays; separation has for the most part held firm in connection with school prayer but, in light of Town of Greece, the move to governmental accommodation is clear in other public prayer situations involving adults; these are, doctrinally at least, the results of changes in the prevailing Establishment Clause tests, which I will briefly discuss next. Of course, personnel changes on the Supreme Court are perhaps a more direct cause as, for example, Justice O’Connor’s replacement by Justice Alito.

The Lemon, endorsement and coercion Establishment Clause tests

The heretofore dominant Lemon test: purpose must be secular, the effect must not be to advance or inhibit religion and entanglement; see Lemon v. Kurtzman, 403 U.S. 602 (1971), dealing with aid to religious schools; this is a very government-restrictive test as is obvious particularly in school prayer cases, but also quite restrictive in aid to religious school cases and religious display cases; Lemon has been extensively criticized by various justices in the the so-called conservative majority on the Court and, indeed, was not used by anyone in Town of Greece; other tests have been offered in its place

Justice O’Connor’s endorsement test: a less government-restrictive test initially developed in connection with religious displays, e.g. Lynch v. Donnelly (1985), which asks whether the challenged government conduct would be seen by a reasonable objective observer familiar with history and tradition as an endorsement of religion

Justice Kennedy’s coercion test in Lee v. Weisman (1992), the graduation prayer case in which, for the Court, he emphasized psychological coercion as against the legal coercion of compulsory school attendance: a very permissive government test, particularly outside of the context of school prayer, as demonstrated by Town of Greece.

Town of Greece in the Second Circuit

The Town of Greece, an overwhelmingly Christian town in New York State, over a period of a decade or so, regularly invited Christian clergymen to lead the opening prayers in town board meetings. These clergymen, more often than not, invoked Jesus and/or the Holy Ghost in their prayers and typically, everyone, including members of the public (mostly adult) in attendance on various business matters, was asked to stand, bow his/her head or join in the prayer, which most, but not all, did. At the same time, the town, after protests from non-Christians, including several Jews, invited a few others, including non-Christian clergy, to lead the opening prayer, which was done for a very short time, say a few months, after which the town reverted to its past practice, in part because the town’s places of worship are all Christian and also because it was easier.

Does this pattern violate the Establishment Clause?

The Second Circuit, in Galloway v. Town of Greece, 681 F.3d 20 (2d Cir. 2012), held that it did. It declared (emphasis added):

“What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”

Note that the Second Circuit used Justice O’Connor‘s endorsement test in holding that the Establishment Clause was violated. Significantly, the Second Circuit did not use Justice Kennedy’s coercion test.

However, it discussed and distinguished the Supreme Court’s decision in Marsh v. Chambers, 463 U.S. 783 (1983), the only case in which the validity of legislative prayer had previously been considered by the Supreme Court. Here, the Court ruled that the Nebraska legislature’s practice of opening its sessions with a prayer delivered by a state-employed clergyman did not violate the Establishment Clause. The Court used an historical approach to interpreting the Establishment Clause, emphasizing that the Framers themselves, by their practice in Congress at the beginning of the United States government, did not view legislative prayers led by government-employed clergy as violations of the Establishment Clause. In addition, and importantly, the Court noted in Marsh that the Judeo-Christian content of the prayers involved did not establish religion because the prayers did not proselytize, advance any religion or disparage any religion. It was on this basis that the Second Circuit distinguished Marsh.

Town of Greece in the Supreme Court

The Supreme Court, not surprisingly, granted certiorari and gave the answer to the Establishment Clause question that most of us, including me, expected and predicted. The 5-4 decision reversing the Second Circuit was handed down on May 5, 2014.

Justice Kennedy wrote for the Court, and emphasized Marsh and its reliance on tradition. He rejected the argument that Marsh was distinguishable because overtly Christian prayers were not involved there. In his view, this was insignificant and irrelevant to the Court’s reasoning in Marsh. He disavowed dicta to the contrary in later cases about this limiting interpretation of Marsh. Further, not only did the prayers involved here fall within the tradition in Marsh but it was important that the Town maintained a policy of non-discrimination.

As an alternative ground joined only by Chief Justice Roberts and Justice Alito, there was no coercion here because adults were voluntarily present at the Town meeting, in contrast to Lee v. Weisman with its graduating middle-school children who were psychologically coerced into attending. Moreover, offense was not enough to constitute the requisite coercion.

Justices Scalia and Thomas did not join the coercion part (they had dissented in Lee), but otherwise agreed with Justice Kennedy’s reasoning about Marsh and tradition. Both of them agreed that there was no coercion here but argued, disagreeing with Justice Kennedy, that only legal coercion mattered. Justice Thomas alone maintained that the Establishment Clause did not apply to the states through incorporation via the Fourteenth Amendment.

Justice Kagan wrote an impassioned dissent, arguing that Marsh was distinguishable because here, unlike in Marsh, the prayer was explicitly Christian. Moreover, in Marsh, the prayer was primarily for legislators, whereas here, the prayer was not only for local legislators but also involved citizens present to conduct business. She made a perceptive argument when she used a functional approach and maintained that town meetings perform not only legislative functions but also adjudicative and executive functions as well (her hypos) in which citizens participate. Finally, she chastised the majority’s obvious blindness to other religions and their adherents and its insensitivity to what citizenship means.

Observations

1. No Justice relied on the Lemon test, including the dissenters; in the public prayer setting (probably school prayer as well after Lee) it is effectively dead; and this also seems to be the case for its use in aid to education and religious display cases.

2.  Justice O’Connor’s endorsement test is, after Town of Greece, probably inapplicable to public prayer cases as well, although it may retain its currency in the religious display cases.

3. Town of Greece continues the Court’s determined march in the direction of an increasing governmental role in accommodating religion in the public square

4. Consider the fact that all of the justices in the majority are Catholics (and therefore Christians), while three of the four dissenters are Jewish (Justice Sotomayor is Catholic). What does this suggest, if anything, about blindness to minority religions in the Establishment Clause setting? What does it suggest, if anything, about the effect of a justice’s religion on his or her view of the Establishment Clause, at least for this Court?

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