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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