Marc DeGirolami of the St. John’s University Law School provides a very helpful breakdown of some of the key aspects of Monday’s ruling in Greece v Galloway. This analysis is mostly about the plurality opinion written by Justice Kennedy, which is the controlling opinion in the case.
As my friend Dan Ray pointed out on Facebook, it appears that there are now five votes to do away with the Lemon test, at least in most cases (as Justice Scalia said 25 years ago, they’ll likely keep it around to summon it from the grave when necessary to reach the result they want), and the endorsement test as well. So what are we left with? Some version of the coercion test (Kennedy’s version, joined by Roberts and Alito, is broader than the very narrow version offered by Scalia and Thomas, with Thomas going even further and arguing that the Establishment Clause doesn’t apply to the states or cities at all) plus “history and tradition.” DeGirolami notes the emphasis on history and tradition:
1. By far the most prominent theme in Justice Kennedy’s opinion is the role of tradition and historical practice in validating the practice of legislative prayer. That point is repeated no less than six or seven times in all kinds of contexts. The practice is “part of our expressive idiom” and our “heritage.” Justice Kennedy writes that “Marsh is sometimes described as “carving out an exception” to the Court’s Establishment Clause’s jurisprudence,” inasmuch as no “tests” were applied in Marsh, but in reality, “[t]he Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause” That’s important. It indicates that the mode of analysis in Marsh was not a carve-out, so much as the place where all Establishment Clause analysis begins, and, under certain circumstances, where it ends.
And unfortunately, the liberals on the court accepted that framing, even in dissent:
4. Framing: Everybody–Justice Kennedy, Justice Kagan in dissent (of which more soon), and the parties–seems to have accepted the following framing by the Court: “The Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.” No member of the Court resisted this framing or opined that this was an inappropriate or wrong-headed sort of inquiry.
That’s very bad. And the inevitable result will be that, even when these legislative bodies technically allow all religious groups to deliver such invocations from time to time, they will be overwhelmingly Christian:
6. Entanglement and majoritarianism in supervision: Kennedy further remarks that requiring the Court to supervise the content of prayers would demand government over-involvement in religious matters. The cite here is to Hosanna-Tabor, not to Lemon. It would also inevitably result in majoritarian favoritism, as courts would demand words acceptable only to a majority, the effect of which would be to exclude a minority.
Of course it would. The very act of prayer, regardless of whether it is “sectarian” (whatever the hell that means) or not, excludes the non-religious minority. So what are the limits on such prayers?
7. Limits: the limits on the acceptability of legislative prayer seemed to be those which “over time…denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.” Also, where “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.”
8. Note the words “over time” in the previous statement. Although plaintiffs presented some evidence that two of the prayer practice occasions did not serve the traditional functions of legislative prayer as formulated by the Court, these two occasions “do not despoil a practice that on the whole reflects and embraces our tradition. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation.” That is quite a different test than any that existed before. Moreover, the fact that nearly all of the congregations in town are Christian and therefore are substantially represented–or over-represented–in the legislative prayer practice does not itself render the practice unconstitutional: “So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.”
In other words, they can begin their meetings with prayers as long as they don’t “denigrate nonbelievers or religious minorities” (as though the mere act of making them sit through the religious exercises of others is not an act of denigration), “threaten damnation” or “preach conversion.” But it seems to me that this standard ducks into the same punch that Justice Kennedy said was necessary to avoid when he refused to make a distinction between sectarian and non-sectarian prayer. Does this not also require public officials and the courts to “supervise the content of prayers” and “demand government over-involvement in religious matters”? What if a prayer said this:
Lord Jesus, we ask your blessing on these proceedings and ask that you would guide these public servants to make wise decisions for the citizens. We also ask that you would make yourself known and touch the hearts of everyone in this town so that they may know your grace and spend eternity with you in heaven rather than endure eternal torment.
Would that be an attempt to convert? Would it be a threat of damnation? Certainly seems like it to me, but I doubt this court would view it that way. In practice, I don’t see these limits actually limiting much of anything. And I see dozens, maybe hundreds, of local boards immediately starting to offer prayers under this ruling’s far more permissive standard. I also think that the replacement of the Lemon test and the endorsement test with the standards of coercion and history has major implications for Establishment Clause cases across the board, not just in regard to legislative prayer.