Symposium: Religious pluralism, civic unity, and the judicial role

Richard W. Garnett is Professor of Law, Concurrent Professor of Political Science, and the Director of the Program on Church, State & Society at the University of Notre Dame.

Before last Monday’s decision in Town of Greece v. Galloway, it had been nearly a decade since the members of the Supreme Court had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer might call their “legal judgment” – in a clean-and-straightforward Establishment Clause case involving “religion in the public square.”  (Salazar v. Buono was complicated by disputes about standing and the standards for injunctive relief; Pleasant Grove City v. Summum was treated as a free-speech case.)

On June 27, 2005 – the last day on the bench, it turned out, for Chief Justice Rehnquist – the nine Justices managed to issue ten opinions regarding two challenges to public displays of the Ten Commandments.  They disagreed about premises, precedents, methodology, and results, and their work seemed to confirm the widely held view that the Court’s Establishment Clause “jurisprudence” was in “disarray,” was in “shambles,” and was a shuffling “ghoul.”

Those who hoped that nine years and four new Justices might fix the problem were, probably, disappointed by the opinions, even if not the outcome, in Town of Greece.  True, the opinion-count dropped to five, and the Justices professed a welcome, even if not entirely convincing, unanimity with respect to the permissibility-in-theory of legislative prayer and the continuing authority of Marsh v. Chambers.  But, as to the heart-of-things questions about the meaning of the Establishment Clause and the Court’s role in enforcing it through the development and application of judicial doctrines, the Justices seem to have served up – as Prof. Paul Horwitz put it, in his The Agnostic Age – yet another “dog’s breakfast.”  The controversial-but-still-bar-review-black-letter Lemon and endorsement tests were not applied, or clarified, or rejected — just ignored.  Now as before, when it comes to public-religion cases, no single “test” controls, no one factor is decisive, and not much confidence is warranted about the outcome of the next case.

Now, the case’s bottom line – a narrow majority upheld the town board’s practice of opening its monthly meetings with a prayer – was not surprising, for at least three reasons:  First, as Justice Kennedy reported in his opinion for the Court, “[t]he First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time.”  Holmes famously complained (in another context) that it is “revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV.”  However, our history and traditions – because they are our history and traditions – do and should matter in constitutional law, and not merely out of what Holmes dismissed as “blind imitation of the past.”  In any event, the Court has often and rightly said – as Justice Alito noted in his concurring opinion – that “actions taken by the First Congress are presumptively consistent with the Bill of Rights.”

Second, the Court had ruled more than thirty years ago, in Marsh v. Chambers, that the First Amendment allowed the Nebraska legislature to begin its sessions with a prayer given by an officially appointed and publicly paid chaplain.  And, the Justices in that case had not made these prayers’ constitutionality contingent on their using the generic, nonsectarian language of what Robert Bellah might have called “civil religion” or others labelled the “generalized religion of the American Way of Life” or “American Shinto.”  At the oral arguments in Town of Greece, none of the Justices had indicated an interest in overruling Marsh, and the four Justices who dissented explicitly “agree[d] with” that decision.  A legal environment so conditioned by Marsh was a favorable one for Greece’s prayer policy.

Finally, the Obama administration had weighed in on the side of the town, arguing that the court of appeals had “erred in its application of Marsh,” insisting that “a prayer practice . . . does not amount to an unconstitutional establishment of religion merely because most prayer-givers are Christian and many or most of their prayers contain sectarian references,” and emphasizing that “[n]either federal courts nor legislative bodies are well suited to police the content of [legislative] prayers[.]”  Although this administration has not always prevailed in the Court – indeed, it lost nine to zero two years ago in the last big religious-freedom case, Hosanna-Tabor Evangelical Lutheran Church v. EEOC – its intervention in Town of Greece probably helped to keep the Justices’ focus on Marsh.

In my view, the Court in Town of Greece reached the right result:  Whether or not the town board’s practices and policies were wise or welcoming given the fact that – as Justice Alito wrote – “we are a Nation of many religions”; whether or not opening prayers given by volunteer local clergy in fact “lend gravity” to board meetings; and whether or not lawmakers actually respond to what Justice Kennedy characterized as an “invit[ation] . . . to reflect upon shared ideals and common ends before they embark on the fractious business of governing,” what the town board did is – for better or worse – constitutionally permissible.  As I wrote, here at SCOTUSblog a few weeks before oral argument, “‘establishments’ of religion do exist in this world” – and we in the United States were and remain entirely correct in rejecting them for our political community – “but this is not one.”  The Justices in the majority are not crafty theocrats or insensitive majoritarians bent on dismantling the “wall that should separate church and state” but are simply, and appropriately, reluctant to strike from the list of allowable official actions one whose roots go as deep as this one’s – or as ones like this one – do.

To say this is not to advocate for legislative prayer or to endorse the practices and policies of the Town of Greece.  Not all permissible practices are best practices and, as I said in my earlier post, the suggestion of the court of appeals that officials and citizens “pause and think carefully before adopting legislative prayer,” like the call in Justice Kagan’s dissent to treat “seriously the multiplicity of Americans’ religious commitments,” is – as Justice Alito acknowledged in his concurring opinion – good advice.  The Court’s role, though, is and should be limited to developing and deploying, in a not particularly ambitious way, rules and doctrines that reflect and protect reasonably well – not perfectly, but reasonably well – the meaning of the relevant legal provision or prohibition.  That a case, or a particular kind of case, is – as Justices Kennedy, Breyer, and Kagan all put it – “fact-sensitive” does not authorize a different, “roving commission” role.

In particular, the Court’s constitutional charge to “say what the law is” in Establishment Clause cases should not be understood to include addressing and answering what Justice Breyer said was “[t]he question in this case” – namely, whether the town “did too much . . . to promote the ‘political division along religious lines’ that ‘was one of the principal evils against which the First Amendment was intended to protect.’”  Justice Kagan similarly called for sensitivity to religious beliefs’ “ever-present potential to both exclude and divide” and framed the Court’s task in terms of identifying and preventing “religiously based divisiveness.”  In so doing, she echoed a recurring theme in Justice Breyer’s writings about the Religion Clauses’ “basic purposes”:  “They seek,” he said in his Van Orden v. Perry concurrence, “to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike” and – in his Zelman v. Simmons-Harris dissent – to “protect[t] the Nation’s social fabric from religious conflict.”  And, in his 2006 book Active Liberty, he argued that judges’ obligation to help “create a framework for democratic government” warranted this social-fabric-management approach to public-religion cases and acknowledged that their duty to police the arena of politics and policy for unsettling threats of faith-related discord could require them to “interpret the [Religion Clauses] more broadly than the Framers might have thought likely.”

Justice Breyer, for his part, is re-issuing Chief Justice Burger’s report more than forty years ago in Lemon that “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.”  In that case, the “divisive political potential” of certain school-funding programs was enough to require their invalidation.  Burger foresaw “considerable political activity” on the part of “partisans of parochial schools” and worried that such activity “would tend to confuse and obscure other issues of great urgency.”

It is not clear, though, why our political, cultural, and other “divisions” – which are as inevitable as they are real – should be relevant to the legal question whether a particular policy is constitutionally permissible.  Several years ago, in an overlong and excessively annotated law-review article, I attempted to show that they should not be.  I reviewed in detail the genealogy of the political-divisiveness inquiry and concluded, among other things, that there is something unsettlingly undemocratic about the notion that the First Amendment authorizes courts to protect us from “confusion” or privileges judges’ sense of political “urgency.”  After all, and as Chief Justice Burger conceded in Lemon, “political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government.”  Judicial squeamishness regarding messy politics is not a reliable constitutional benchmark, and judicial observations or predictions of “political division along religious lines” are not enough to make controversial policies unconstitutional.

It is true that excessive polarization, disagreement, and division in a political community can be unsettling.  It is also true that one way to avoid “political divisiveness along religious lines” is to constitutionalize, as we did, a rule prohibiting “law[s] respecting an establishment of religion.”  (Another way, Justice Alito suggested in his concurrence, recalling the First Continental Congress, might be to join together in prayer.)  It is also worth remembering, though, the challenges and risks that attend what Justice Kagan called “the distinctively American project . . . of creating one from the many, and governing us all as united.”  We should, as John Courtney Murray once put it, “cherish only modest expectations with respect to the solution of the problem” — and, in particular, with respect to the Court’s ability to solve through Establishment Clause decisions, the problem — “of religious pluralism and civic unity.”