Symposium: Legislative prayer and judicial review

Richard W. Garnett is a Professor of Law at University of Notre Dame. 

After taking a year off from church-state cases, the Justices are set to jump back into the fray.  In early November, the Supreme Court will hear arguments in a case called Town of Greece v. Galloway, which involves a smallish New York community’s practice of opening its Town Board meetings with a short prayer, offered by a volunteer “chaplain of the month.”  The federal court of appeals ruled that, while legislative prayers can be constitutional, the Town’s legislative prayers are not.  In the court’s view, because of the “totality of the circumstances” involving and surrounding the Town’s practice, it “conveys to the reasonable observer . . . an official affiliation with a particular religion” and therefore “violates the clear command of the Establishment Clause.”

As has often been the case under Chief Justice Roberts’s leadership, one of the many interesting and important questions the Galloway case prompts is whether the Court will make headlines and turn heads by announcing a big change in its doctrines or will instead disappoint journalists who want news buzz and law professors who need new topics by resolving the matter on narrow grounds.  The Justices could, for example, scrap entirely the “endorsement test,” which they have employed often during the past thirty years in a variety of cases involving public displays and government expression.  This test has been forcefully criticized for its manipulability, unpredictability, and undue emphasis on the hypothesized reactions and feelings of an also-hypothetical “reasonable observer.”  (Certainly, such a move would fire up the journalists and law professors!)  Or, they could hold simply that the 1983 Marsh v. Chambers decision, which allowed the Nebraska legislature’s policy of opening its sessions with a paid chaplain’s prayer, permits the Town of Greece’s practice, too.  (No big story here.)  Or, they could follow the lead of those challenging the Town’s policy by setting aside the approach taken by the court of appeals, and condemn the prayers for the different reason that they, in effect, “coerce” those citizens who attend the Town Board’s meetings to “participate in sectarian prayers.”  (Call this move by the challengers the “get Justice Kennedy’s vote” approach.)

In my view, the court of appeals got it wrong and the Town’s before-meeting prayers are permissible solemnizations rather than an unlawful establishment.  What is happening in the Town of Greece is consistent with what has been happening at public meetings since our country’s – and our Constitution’s – beginnings.  “Establishments” of religion do exist in the world, but this is not one.  Town officials did not purport to draft, let alone to enforce, a religious creed and the government inviting voluntary “chaplains of the month” to pray at a meeting is not very much like the government imposing a prayer-book on churches.  “Coercing” religious activity is unconstitutional and unjust, but to characterize the Town’s policy as “coercive” is to expand the both the idea of coercion and the power of judges dramatically and unmanageably.

The Town of Greece case, though, is interesting not only for what it could tell us, going forward, about the Court’s First Amendment doctrines and precedents, about the place of religious expression in the public square, and about the extent to which secular governments may acknowledge their citizens’ religious convictions.  The case also provides, I think, a good opportunity for reflection about the role and power of the Supreme Court and about the nature and practice of judicial review in a constitutional democracy like ours.

Usually, but too often, discussions and debates about judicial review involve dueling and disingenuous accusations of “activism” and pious invocations of “restraint.”  The results can be entertaining but are more often dispiriting and are rarely illuminating.  After all, nearly everyone agrees that the Court should not simply substitute the Justices’ policy preferences for lawmakers’, and hardly anyone thinks that the Court should give rubber-stamp approval to whatever legislatures or officials do.  The hard question – the important and interesting question – is not whether the Court should review, and sometimes invalidate, other government actors’ work, but how it should do so.

We can start with a very basic point:  Usually, in a political community like ours, majority rule is the rule.  It is true, of course – as political scientists, history, and experience teach us – that things are, for a variety of reasons, more complicated in the real world and in the trenches.  Still, the basic point is sound, even if stylized.

Now, in a healthy and decent constitutional democracy, the majority does and should sometimes decide to limit itself by taking certain matters off the table of ordinary politics and entrenching certain protections for minorities and the vulnerable.  Judicial review is one important mechanism for enforcing these self-constraints, for holding later majorities to the earlier deal, and for delivering on the promises that earlier majorities made to later minorities.

And so, when judicial review results in the striking down of a validly enacted law or policy, it (ideally) involves a judicial determination and declaration that the law or policy is not consistent with the constraint that “we the people” imposed and accepted on ourselves in order to express and protect a deep commitment.  It is (again, ideally) the enforcement, and not the creation, of such a constraint.  The self-limiting that constitutionalism involves is not the preemptive handing over of tough decisions by nervous citizens to supposedly better and wiser decisionmakers, and the point of judicial review is not to make our laws more consistent with judges’ values or to impose limits on lawmaking that judges believe we should have embraced.

So, judges evaluate, and sometimes disallow, policies that majorities considered, argued about, and embraced.  Because, again, majority rule is the usual way we go about political decisionmaking, this evaluation and – especially! – disallowing is a big deal, and it’s important that the work of judicial review be done right.  Whether or not it is depends, I suggest, on (at least) three related variables:  First, identifying, as correctly as possible, the judicially enforceable meaning of the constitutional text in question; second, the prudent design and development of workable doctrines that courts can use to decide real-world cases; and third, affording the appropriate deference, if any, to those actors whose decisions are being reviewed and who, presumably, decided that those decisions were constitutionally sound.

Now, with these variables in mind, turn back to the Town of Greece case.  The Justices will soon evaluate the Town of Greece’s legislative-prayer practice.  They will, in other words, decide whether or not a local majority’s decision stayed within or stepped across the First Amendment boundary to which “we the people” agreed.  How should they proceed?

The “meaning” of the Establishment Clause – and, more specifically, of the no-establishment rule that the Fourteenth Amendment applies to state and local governments – is, to put it mildly, fiercely contested.  In my own academic writing, I have treated the relevant texts as meaning that religious and political authorities should be distinguished and disentangled so as to protect religious freedom.  Others would emphasize government “neutrality” among religions or with respect to religion, or the avoidance of religion-related civil strife, or equal respect for believers and nonbelievers, and so on.  In any event, it is very unlikely that the Court’s decision in Town of Greece or any other will put the debate to rest or that the Justices will agree among themselves. This deep disagreement will not only complicate, but also compromise, the work of judicial review.

Still, the Court can aspire to do well with respect to the other two variables mentioned above, that is, doctrine and deference.  The court of appeals, its opinion states, saw “no test-related substitute for the exercise of legal judgment” and it characterized the case as a “fact-intensive” one “which def[ies] exact legal formulas[.]”  In the end, though, it couched its decision in “endorsement test” terms, and reported that “several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials,” supported the conclusion that “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.”  But neither throwing aside doctrines and tests in favor of “legal judgment” nor engaging in unstructured speculation, however “contextual,” regarding imagined reactions, impressions, and beliefs that “can give only limited guidance to municipalities that wish to maintain a legislative prayer practice” is a sensible or appropriately deferential way for a reviewing court to play its role.  A relatively clear, historically rooted standard, the tool employed in the Marsh case, works better, and is more consistent the justification for judicial review.

Of course, not all permissible practices are best practices or even good ideas.  Even if the court of appeals reached the wrong conclusion, in an unsatisfying way, about what the Constitution allows, its suggestion to towns that they “pause and think carefully before adopting legislative prayer” is sound advice.  Although it is true that many of us – and, in many places, most of us – believe that it is both appropriate and right to seek God’s help with the important business of living together and well in political communities, it is also true that ours is a religiously pluralist society that is becoming more so.  In such a society, as the American Jesuit scholar, John Courtney Murray, wrote, “[men and women] of all religions and of no religions must live together in conditions of justice, peace, and civic friendship.”  The line that separates policies that build up this friendship from those that tear it down is important, even if judicial review is not always the best way to find it.