Chad Flanders is an Assistant Professor at Saint Louis University School of Law.

1.

Town of Greece v. Galloway is a case about religious diversity – how to recognize it and how to accommodate it.  Justice Kennedy’s majority opinion upheld one version of recognizing diversity, which we might call “deep” diversity or “thick” diversity.  On that view, diversity is best preserved by allowing each particular religious faith to express itself, no holds barred, provided that every other religious faith gets its turn.

But there is another way of acknowledging diversity, found in Justice Kagan’s dissent.  That view, which we might call “consensus” diversity or “thin” diversity, responds to diversity by trying to find some common denominator between faiths, so that all faiths are placated, and no one faith is exalted over others.  We respect diversity by each agreeing to tone down our particular faith, so as to respect the faith of others.

The advantage of thick diversity in the context of Town of Greece is that legislators and citizens alike don’t have to check their religion at the door, or even to muffle or dilute it.  Thus, when it is their turn, Christian legislators and citizens can pray to Jesus, and say the Lord’s Prayer.   Muslims can mention Muhammad when it is their turn, and so on down the line.  Although each particular prayer may be sectarian, the scheme as a whole is not:  the scheme as a whole recognizes religious diversity.  Each person gets his or her turn to represent his or her faith.

The scheme gives us religious diversity but it also has an important equality aspect.   Religious citizens are citizens too, and part of recognizing them as equal citizens is to allow their beliefs and their practices to frame and even solemnize governmental occasions.  As Justice Scalia put it in the oral argument, “people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens.”  The statehouse does not have to be free of all traces or taints of religion, nor should it.

But thick diversity has one obvious disadvantage.  The problem of allowing one group to full-throatedly announce their particular religious beliefs at the opening of a governmental function is that those who do not share those beliefs may feel isolated, alienated, even separated from their government.  It is not that they will feel coerced into believing what they don’t believe; that does not seem to be the major worry.  It is rather that they will feel like outsiders to their own government, because they do not share in the faith of those who are governing them.

Justice Kennedy tries to deflect this worry by saying that if there emerges a “pattern of prayers that over time denigrate, proselytize or betray an impermissibly government purpose,” then this may rise to a Constitutional violation.  But the standard is vague and hard to define:  what constitutes a pattern?  Kennedy later refers to “a course and practice over time” — but over how long of a time?  When does a prayer tip over into proselytization?  Aren’t many prayers at least implicitly designed to proselytize?  If not, why make the prayers publicly, rather than spoken by the legislature in private before the session begins?

More deeply, we might wonder why we have to wait for a pattern for there to be a constitutional violation.  Why isn’t one instance of establishment enough?  The question of who will bring a challenge to a pattern of impermissible prayers is also a real one.   Only a person who has repeated tussles with the government will be around long enough to see a “pattern” emerge and have standing to challenge it.  These are the questions that will doubtless structure future litigation.  Will we have a new cause of action, the “hostile faith environment” claim, alleging an unlawful “pattern or practice” of religious observance?

2.

These concerns might tempt us to head in a thinner direction when it comes to diversity.  The alternative to letting each religion pray uncensored is to try to find a kind or type of prayer that everyone will find acceptable, a kind of common denominator theism.  Religion is still recognized as a permissible presence in government, but not in a way that will offend anyone.  Thus we might have prayers to God or the Almighty, but not prayers that invoke Jesus, or Muhammad.   Perhaps at the limit we would have to find language that even the atheist would find acceptable, so the prayer becomes a kind of “ceremonial deism.”   Each and every prayer has to be inclusive on this view, and not just the rotating prayer scheme as a whole – something to which the thick view aspired.

The thin diversity scheme avoids the obvious problem with the thick version, which is that at any given prayer service, many who don’t share the religion du jour might feel excluded and marginalized.  But it is not evident that going thin solves this problem.  For one, those who dislike their faith being watered down to a generic God might be offended.   Even putting this to one side, there is the problem of finding consensus between religious groups.   At oral argument, several Justices put the challenge to Douglas Laycock, and the exchange quickly gave the impression that this was “Mission Impossible.”  Would a prayer invoking the “Heavenly Father” be broadly acceptable, or not?  Indeed, we may have to go so thin that in the end we have nothing that anyone would recognize as “religious” at all, especially if we have to accommodate the atheist.

There is also the enforcement problem.    Is the government going to appoint someone to review each prayer?  Will that person ask the rabbi or the priest to switch words, to remove one religious term and replace it with another?  As Justice Kennedy explained, “to hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech.”   Better, Kennedy went on, is the Town of Greece’s “current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.”

But the idea that the Town of Greece’s practice would never involve any entanglement with government is misleading.  After all, there is the “pattern” worry, alluded to above:  if the current practice turned “over time” into something impermissible, there would have to be a change.  In a revealing aside in his concurring opinion, Justice Alito writes that, if it turned out that if the clerical employee in Greece who wrote up the list of guest chaplains had intentionally left out synagogues, he would “view this case very differently.”  So the government must at least police the compilation of the list of potential invitees, to make sure it is sufficiently diverse and nondiscriminatory, and that everyone who wants a turn has a fair chance of getting one.   Entanglement of this sort might be less bad than editing out words from prayers, but it is still entanglement – and could potentially be troublesome.  Who gets to decide who counts as a chaplain, or what counts as a religious belief?  Can the devil worshipper get on the list, or those who believe in the flying spaghetti monster?

3.

But perhaps we don’t have to choose between theories of diversity; perhaps we are just stuck with one (and its attendant advantages and disadvantages) because our Constitution subscribes to it.   Can history decide the issue for us?  After all, the First Congress appointed a chaplain, and the Chaplain prayed in a way that seems to us “decidedly sectarian,” with the prayers resembling some of those uttered during town meetings in Greece.

What does the history prove?  It may prove that the First Congress endorsed thick diversity, because it allowed sectarian prayers.  But it could also be the case that the content of those prayers at the time they were prayed represented a sort of common denominator religion, typical of the ”thin” religious consensus of the time (they were looking for consensus, and not an expression of deep diversity).  As we become more pluralistic, maybe our prayers need to become thinner and less sectarian.   Maybe that is the lesson that our historical practice teaches us.

I don’t think that the history can or even should decide for us, even though much of Town of Greece is a debate about that history.  We can’t answer the question of what kind of religious diversity is consistent with the Constitution by simply referring to the history of our practices (however long and however old) because the question is in large part about whether and why we should give history the weight we do.  We need something more, both because the history might be ambiguous, and because the history might not be decisive as to which theory of diversity is consistent with our Constitution.

This in the end may be the deepest problem with Town of Greece — not that the majority and the dissent have the views they do, but that so much of their argument is taken up with comparing and contrasting the prayers in Greece and the prayers in Marsh v. Chambers.  This is to substitute history for analysis, and in a bad way, because we aren’t given a good reason why the history should be so decisive in this case.   In the oral argument for the case, Justice Kennedy expressed his concern that the town’s claim “begins and ends” with “we’ve always done it this way.”   The worry is that Justice Kennedy’s opinion begins and ends this way as well.

Posted in Town of Greece v. Galloway, Featured, Legislative prayer symposium, Merits Cases

Recommended Citation: Chad Flanders, Symposium: Religious diversity, thick and thin, SCOTUSblog (May. 6, 2014, 11:33 AM), http://www.scotusblog.com/2014/05/symposium-religious-diversity-thick-and-thin/