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May 06 2014

Deeper Analysis of the Legislative Prayer Ruling

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.

26 comments

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  1. 1
    eric

    Just a terrible ruling. While ideally I would like no instances of religious denigration by the state at all, I suspect that this court will only ‘see the light’ if some overwhelmingly protestant evangelical town starts instituting prayers that would be offensive to Roman Catholics. Here’s an example (borrowing heavily from Ed’s example):

    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 turn away from false idols and false doctrines that elevate some men and women over others.

  2. 2
    Reginald Selkirk

    The practice is “part of our expressive idiom”

    They spelled “idiocy” wrong.

  3. 3
    EnlightenmentLiberal

    Well, complete and utter bullshit across the board. Today is a dark day.

  4. 4
    Randomfactor

    And Dred Scott was decided correctly, based on America’s history of allowing slavery.

  5. 5
    Reginald Selkirk

    Also, where “many present may consider the prayer to fall short…”

    How many? Apparently it is OK to violate the rights of one or a few people, so long as you don’t piss off a large number. Ah, the wisdom from on high.

    I think John Roberts could improve himself by just once in his life living in an environment in which he is not the privileged majority.

  6. 6
    D. C. Sessions

    What happens when a body routinely starts its meetings with a 45-minute prayer service, to the extent that many people don’t even bother to arrive for the first half-hour? Seems like all kinds of business could be rushed through on the exceptional occasions when the prayer takes 30 seconds instead.

  7. 7
    Doug Little

    Why the need to pray before legislative sessions in the first place? I see no practical need to do so, what does it serve?

  8. 8
    Sastra

    Why the need to pray before legislative sessions in the first place? I see no practical need to do so, what does it serve?

    It’s marking territory — like a dog pees on a tree. THIS city/town/state/country belongs to us. This is how we citizens show that we’re taking government seriously.

  9. 9
    Modusoperandi

    “Tradition” is what the Privileged Majority call “a history of Us treating Them like garbage”. You’d figure the American Catholics on the bench would be better at recognizing how recent their ascent to Privileged Majority status was and how precarious it is.

  10. 10
    pocketnerd

    I know courts are somewhat bound by precedent, so this has ramifications for long after the RATS (Roberts, Alito, Thomas, Scalia) bloc is retired (or dead, although in Scalia’s case I’m not sure it would make a difference). A question for the legal experts: Can a future SCOTUS dismiss precedents set by this one as being the product of a just-barely-majority with a clear ideological agenda?

  11. 11
    John Horstman

    Time to start trolling the hell out of any government prayer, then challenge any arrests/disorderly conduct tickets on religious freedom grounds – my ‘religion’ of anti-theism mandates that I challenge all institutionalized religion, after all. Also, we need a whole bunch of people to sign up to give prayers that talk about how there are no gods and the religious are wasting their lives, or how all Christians are going to suffer for all eternity. Secularism is really the only possibility for equality, and if we have to go overboard to demonstrate why, I guess that’s that.

  12. 12
    haitied

    It’s time to start going to town meetings where invocational prayers are offered and volunteer to give the prayer in the name of “Your God” be it Satan, FSM, anything at all but keep it just under their guidelines. If you want a wound like this treated, you got to tear into it and dump a bucket of salt inside.

  13. 13
    DaveL

    “Our” heritage?

    “Our” traditions?

    “Our” expressive idioms?

    Sorry bub, not mine.

  14. 14
    F [i'm not here, i'm gone]

    Kennedy further remarks that requiring the Court to supervise the content of prayers would demand government over-involvement in religious matters.

    You mean the “non-religious” prayers? The ones they keep stuffing into our government functions?

    So, if we had an outright religious takeover of government, you couldn’t rule on any of their dominionist policies, because you would be then meddling in religion too much? WTF?

  15. 15
    tpoiii

    Does anybody think this spells the end of hostile environment protections for sexual harassment? Seems like an obvious parallel to me.

  16. 16
    tacitus

    I understand the angst and disappointment this ruling is causing, but in the long run it won’t be the deciding factor when it comes to the future of conservative Christian religion in America. After all, Christianity is firmly established as the official state religion in most European national, and that has done nothing to prevent the collapse in the number of adherents over the last 25 years or so.

    This ruling isn’t going to stem the increasing flow of “nones” now flooding out of high schools and colleges, and nor would a future ruling re-establishing prayer in schools (not that it’s likely in the near future). If anything, the more victories like this the conservatives gain, the more likely it is that the younger generations will want to rebel against their impositions.

    No doubt, in the short term, this ruling will embolden the religious right to put more effort into “taking back” what they believe was lost, but any victories will be short lived. I see no reason not to believe that the secularization of America will continue as before.

  17. 17
    Nihilismus

    Kennedy further remarks that requiring the Court to supervise the content of prayers would demand government over-involvement in religious matters.

    Isn’t the whole point of the entanglement prong that if the required supervision demands too much of the government, then the action requiring supervision is not allowed?

    And how is this government over-involvement in religious matters? These are governmental meetings! This is religious over-involvement in governmental matters. This isn’t about individual citizens’ religious freedom, this is about what government officials are allowed to do. How can there be government over-involvement in governmental matters?

  18. 18
    NVSkeptic

    Anyone have any good ideas about how to protest this live at a meeting? I would like to see a movement where we start attending all of these meetings and doing… something. Not something so overtly disruptive that you could get successfully prosecuted for it, but something that would piss them off enough to wrongfully arrest you THINKING they can prosecute for it. Holding up signs that say “This Prayer Does Not Reflect the Views of the General Public”, “Can I Pray to Beelzebub Now?”, etc. Saying “Bullshit” instead of “Amen” at the end. Just looking for some ideas. I’m pissed off.

  19. 19
    tacitus

    Why protest this? Far better to spend your time and efforts finding ways to help teens and young people come to the realization that rabid religion isn’t for them. Help them now, before they’re out of college, and you have them for a lifetime, more than likely.

  20. 20
    Crimson Clupeidae

    Nihilismus @17:

    Isn’t the whole point of the entanglement prong that if the required supervision demands too much of the government, then the action requiring supervision is not allowed?

    Which is precisely why the court went out of its way to not use the Lemon Test, because….reasons (well, pulled out of ass hand waiving…).
    NV Skeptic@18:
    Well, the Roanoke, VA county supervisors (one of them at least) have already said they are going to revisit their policy of just having a moment of silence, and explicitly claimed that they are perfectly entitled to only have xian prayers. The supervisor said that citizens are welcome to express their religious views during the citizen comment section. So, the best way to protest would be to have anyone making an inquiry start with a really long ‘prayer’ as the prelude actually addressing the board. To make it extra specially tasty, I think it would be fun to actually get a bunch of people to start with “That prayer doesn’t represent the beliefs of my ..” then proceed with a ten minute prayer.

    Ref. the EMO Phillips joke for the punchline. This would have the added benefit of making them unwilling to stop the practice, because they would still see these as xian prayers, but it might eventually get the point through their thick pointy heads that it’s a bad idea.

  21. 21
    zero6ix

    “This Prayer Does Not Reflect the Views of the General Public”

    This. Is. Perfect.

    A simple sign, just held up during the opening prayers. No fuss, no getting vocal. Just hold it up and stinkeye anyone that tries to give you lip. And all you’d be doing to stating a basic unarguable fact. And by keeping things level headed, this point of view will only come off as “extreme” by the virgin up front telling you how awesome life is going to be when life ends.

  22. 22
    ashleybell

    thank you tacitus @16. My need to remain opimistic in the face of this kind of ruling needs some support. I believe you’re right. It wasn’t politics (or necessarily the courts outside of socil context) that changed the majority position on marriage equality. It was culture shift…And this shit fucking ruling handed down from the Supremes just guarantees their place in history as the fucking laughstock they are. i can’t WAT for open admission of Christian faith to be a liabilty and not an asset. Believe me…. Smart creative people are gonna figure out ways in the next few months to punk the fuck out of this ruling.

  23. 23
    Johnny Vector

    Now I want to give one of these prayers. It would be short and sweet; just a reading of Matthew 6:5.

  24. 24
    ashleybell

    @ zero6ix @ 21:…SEE!~ SEE! zero6ixs comment hadn’t posted when I posted @ 22. z6 proved my point WITHIN SECONDS of my comment!:
    -
    Smart creative people are gonna figure out ways in the next few months to punk the fuck out of this ruling.

    -
    I am Revived! thanks commentariate ( :

  25. 25
    Nihilismus

    @18 NVSkeptic

    Anyone have any good ideas about how to protest this live at a meeting?

    Maybe people can wear T-shirts that say “I am a citizen unrepresented by this prayer” or “Let us NOT pray” under a coat, which they take off when the prayer starts. Maybe they can also attach flashing lights that get everyone’s attention without interrupting the audio of the prayer.

    Maybe people can stage a little performance, where one actor starts praying and a few other co-actors in the audience go into a hypnotic trance chanting something creepy, or a recording of a loud deep voice purporting to be God states its disapproval and recites Matthew 6:5.

    Maybe a person wearing a referee shirt and a baseball cap that says “Prayer Monitor” can stand near the speaker and blow a whistle anytime the prayer starts to “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion”, giving first and second warnings, and throwing down flags — that way, the “over time” qualification becomes something that can be met in the course of one prayer.

    Maybe, similar to what Crimson Clupeidae @ 20 suggested? At most local meetings, during the public comments, speakers have to state their name and their address. Have a bunch of speakers also add their religion, denomination, congregation, and pastor, using long names for each. Have them state that they are happy we can finally say sectarian prayers, but that the “official” (said while making air quote gestures) prayer didn’t represent them and that before they get on to their public comment everyone should bow their heads as a new prayer is spoken.

    If the meetings don’t normally end in a prayer, speak up and say you will now lead everyone in a closing prayer — and make it long since everyone wants to go home. And get to other meetings early and start praying out loud before the “official” prayer can start, and then call others out on their rudeness if they try to interrupt your prayer to start their own.

  26. 26
    ysoldeangelique

    I’m wondering if towns start adding these things couldn’t people claim that “history” and “tradition” has been that no prayers were given?

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