Tuesday, May 6, 2014

Justice Thomas Make a Leap of Faith

Justice Thomas Makes a Leap of Faith

Let’s begin with a proposition.  New York City, sleek, slick, liberal, atheistic capital of hedonism, suddenly has an epiphany, and gets religion.  At long last, Staten Island finally opens its arms to its heathen brethren.  Everywhere pockets of devoutness spout up, from the formerly libertine Greenwich Village to the softheaded Upper West Side,  the hip sections of Brooklyn, all of Flushing (the Mets are in particular need of Divine help) and Riverdale in the Bronx.  From there the pull of faith begins to spread, and there comes a time that it is so great that even the ACLU is forced to close up shop and move to Oklahoma.

The conversion is not complete, because the pure contrariness of New York DNA keeps an irreducible, un-saveable 40% from seeing the light, but thanks to some savvy gerrymandering, everywhere the seculars are outnumbered.  The devout then turn their eyes to their alternate religion, politics, and take over every arm of government, every community council.

But, there is a problem with all this purging of sin and seizing of power. New Yorkers are a diverse lot.  The Catholics have an absolute majority in four of the five  boroughs among the self-identified, but, since that constitutes only about 60% of the population, they can’t run things on their own.  So, they cut deals with the Protestants and the Jews, where necessary.  Everywhere, there is a division of labor and power, and everywhere, at every governmental meeting of every type, large to small, they open with a twenty-minute religious service.

Crazy story, right?  Certainly, the courts, when alerted, will put them right?  That is where the Supreme Court’s decision, this last Monday, in Town of Greece vs. Galloway comes into play. In a 5-4 ruling (is there any other kind?) the Court held that a) some legislative prayers are Constitutionally permissible, and b) prayers that have specific religious content or have theological content specific to one faith (such as Christ or the Resurrection) are also permissible. 

The decision of the Court, written by swing vote Justice Kennedy, and joined by the conservative bloc, was fascinating in its delicacy.  Justice Kennedy said, "Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.”  The decision implies but does not draw a line that prayers that denigrate or otherwise belittle other faiths might not be permissible, but it does express a certain noblesse oblige that the prayer any of the Justices in the majority might find on a Sunday morning in their place of worship should surely be acceptable to everyone.

The minority opinion (Justice Kagan, joined by Justices Sotomayor, Ginsburg, and Breyer, who wrote a separate dissenting opinion) found the majority’s ruling unpersuasive.  While they recognized existing precedent that a little non-sectarian praying before legislating could be Constitutional, they thought that the medium-sized town of Greece (population, 94,000) seemed to be leaning quite assertively away from the merely ceremonial.  Since 1999, when a new Town Supervisor was elected, Greece had moved from a moment of silence to prayers led exclusively by members of the Christian clergy.  Greece did not overtly select the clergy, nor did it either dictate or limit what types of prayers were uttered, but, as you might imagine, some clergy brought more passion than others. 

What the minority was worried about was impact of overtly religious symbols in a civic setting.  Would a non-Christian citizen, upon attending a public meeting, feel that her chance of fully participating in the governance of their town was limited because of her faith? 

That is hard to say.  One of the examples that Justice Kennedy cited and presumably found acceptable was “We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter.”   That is a little stronger than the 23rd Psalm.

Practically, and not necessarily as a matter of law, I think both Kennedy and Kagan got it half right. A short prayer, even one not in my liturgy, and assuming I am not compelled to join in, doesn’t offend my sensibilities.  I am not convinced, given the long history of legislative ceremonial prayer, that it is per se a gateway drug to theocracy.

But, clearly, there is some line.  What Kagan and Kennedy are both doing, whether they articulate it that way or not, is applying a “hall monitor” strategy.  Kagan, in effect, is saying that the language I just quoted above is the very type of thing a hall monitor would flag.  Kennedy (and Scalia, in a concurring opinion) think that the children really don’t need a hall monitor, a little religion won’t hurt them, and if the offense is really bad (egregiously sectarian to the point of interfering with civic life) then someone will rat out the teacher to the Principal (the courts) and the proper limits would be imposed.

There is logic in both positions. The portion of the First Amendment that deals with religion states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” Traditionally, we have thought of the Establishment and Free Exercise Clauses as a type of macro rule.  Government can neither promote nor prefer one religion to another, nor can it prohibit anyone from exercising his or her religious rights.  To most people, that makes sense.  The skirmishes we have had have often been where the invisible line was crossed, such as putting a crèche in a public square, or in organized prayer in schools.  But the basic idea, that Big Government shouldn’t be putting its thumb on the theological scale, is intuitively logical and fair to most Americans.

What Kennedy’s and Kagan’s opinions represent is within the continuum of that debate—just where is the red line? For both, it remains peculiarly fact-specific and their opinions are oddly analogous to the famous Justice Potter Stewart test for obscenity “I know it when I see it.” So, in that light, Greece is somewhat human and comforting, even if I don’t completely agree with the result.  They did the best they could, while applying their own personal standards.

If that was where it ended, I think I would be somewhat dissatisfied, but content.  Then I read the concurring opinion of Justice Thomas.  Thomas, on his own, repeated his contention that the Establishment Clause should not be seen as incorporated by the Fourteenth Amendment against the States.  In his view, “Congress shall make no law” means only Congress shall make no law.  State and local governments are not so limited, and are free to promote, support (or, presumably interfere with) the exercise of religion.  Thomas allows that the Establishment Clause “probably” prohibits Congress from establishing a national religion. Parenthetically, the “probably” part is enough to chill one a bit.  But as to establishing a State (or city, or county, or town, or hamlet) religion, the sky is apparently the limit. 

Not to draw the logical conclusion, but if you can do it in Greece, New York, you can certainly do it in New York, New York.  Size doesn’t matter.

Justice Thomas is reportedly a man of faith.  But his opinion in Greece?  That’s a leap of faith.

May 6, 2014

Michael Liss (Moderate Moderator)

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