Town of Greece v. Galloway evoked an earlier case, Marsh v. Chambers, which rejected an Establishment Clause challenge to opening legislative sessions with a prayer. As Justice Kennedy wrote for the majority in Town of Greece:
Marsh is sometimes described as “carving out an exception” to the Court’s Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to “any of the formal ‘tests’ that have traditionally structured” this inquiry.The internal quotes come from Justice Brennan's dissenting opinion in Marsh. It was criticism of the majority's approach. Why didn't the Marsh Court use a structured, formal test? Justice Kennedy explains:
The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. The 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….I'm eliding a lot of discussion about why the historical argument for legislative prayer was so strong, but is a long historical practice an alternative way for something to be constitutional, a detour around the usual "tests" that would be applied to new practices? It's important to see that the majority of the Supreme Court in Town of Greece answer that question no:
Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted “by reference to historical practices and understandings.” County of Allegheny, 492 U. S., at 670 (Kennedy, J., concurring in judgment in part and dissenting in part)….That is, it is the test that must accommodate the historical practices. The historical practices do not bypass the test — whatever it is. The test must include things like legislative prayer that the Court is sure do not violate the Establishment Clause.
Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change….
Justice Alito has a similar statement in his concurring opinion:
In the case before us, the Court of Appeals appeared to base its decision on one of the Establishment Clause “tests” set out in the opinions of this Court... but if there is any inconsistency between any of those tests and the historic practice of legislative prayer, the inconsistency calls into question the validity of the test, not the historic practice….Justice Breyer's dissenting opinion also disparaged the existing "tests," though he grounded himself not in history but what he calls "legal judgment":
As we all recognize, this is a “fact-sensitive” case... In seeking an answer to that fact-sensitive question, “I see no test-related substitute for the exercise of legal judgment.” Van Orden v. Perry, 545 U. S. 677, 700 (2005) (Breyer, J., concurring in judgment).Breyer doesn't need or want an articulable test. He's that kind of judge. The judges in the majority seem to believe in doctrine, but they reject any test that does not validate legislative prayer and other practices that look constitutional because of the historical tradition. These judges tell us what they expect from a test, but they don't articulate a test.
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It's a test test.
Has what has been historically accepted historically been accepted?
Not always.
Something's wrong with the test test, historically.
Take opening prayers just as a sign that assholes are in charge of the meeting.
Once that's generally understood, the conflict will end.
Great comments, rh.
Isn't the majority's argument inconsistent with the original public meaning (as opposed to originalism) theory by which conservatives now support Brown v. Board?
Jonathon Tobin makes a good point
"Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change." This seems like a pretty broad-brush tool. Does the fact that pretty much everyone in American history believed that same-sex marriage is not allowed, convert into a proof that the constitution must allow DOMA?
Derrida said of tradition that it must be both imposed and chosen.
Take objections to opening prayers just as a sign that assholes are at the meeting.
"Exceptio probat in casibus non exceptis, which translates into English as Exception confirms the rule in the cases not excepted"
That legal maxim seems to fit here. That is, since the Lemon test has no element involving a historical test, this decision does not necessarily weaken the test but reinforces its application for non-historical matters.
The 1st Amendment says that Congress (that is the Federal Gov't, since the Executive is directed to carry out the laws enacted by Congress) shall not interfere with the religious beliefs and practices of the citizens of the several states.
It was Justice Hugo L. African-American who managed to stand the Establishment Clause on its head and command Congress and Executive both to mess with anyone and everybody, everywhere, all the time.
MikeR said...
Does the fact that pretty much everyone in American history believed that same-sex marriage is not allowed, convert into a proof that the constitution must allow DOMA?
No, since the DOMA does not have that history. This argument would undercut the case for states being required to allow same sex marriage.
It would also undercut Roe v. Wade.
"Congress shall make no law respecting an establishment of religion"
What does the US Congress have to do with a local town meeting? Are they funding it?
My comment "Great comments, rh" referred to the first 2 comments.
The third comment I did not intend to opine on.
"This seems like a pretty broad-brush tool. Does the fact that pretty much everyone in American history believed that same-sex marriage is not allowed, convert into a proof that the constitution must allow DOMA?"
No, not DOMA. DOMA fails in large part because the federal government has no legitimate business treating one legal marriage differently from another legal marriage. It's a due process issue.
However, the Court's explanation for why the 1st Amendment must be understood to permit legislative prayers is also a good argument against recognizing rights discovered in the penumbras of the Constitution. If the founders thought outlawing abortion was compatible with the Constitution, that's pretty good evidence that outlawing abortion is compatible with the constitution. Any rule adopted by the Court for applying the Constitution that would require legalized abortions is therefore suspect. The same would apply to laws concerning homosexual behavior.
At least, that would be true if the Court were to uniformly apply its reasoning in Greece to other matters. It won't.
The third comment is unsatisfying because at a town meeting people are coming to their government to attempt to get action on their particular issues, and signaling that they are "assholes" is saying government is tyrannical and abusive. You might say: Yeah, people should know that. But the problem here is that you are refusing to see that the message isn't just we're randomly assholes (assuming "asshole" is the proper interpretation of beginning the meeting with a prayer) but biased assholes.
Look, what the SCOTUS majorities over the years have plainly been trying to avoid is a separation-of-powers case on the constitutionality of prayers in the US Senate and House. Once you get that basic point, everything falls into place.
The concurring opinion creates a test: did actual coercion occur? And it specifically says that feeling excluded is not evidence of coercion, and that a parade of hypothetical horribles does not actually prove coercion in the instant case. The implication of the concurrence is that if those hypothetical horribles had actually happened, then the first amendment would have been violated.
I was at a city hall meeting once, I had walked to the church to pick up a family bible (with births, deaths, marriages, confirmations recorded inside) that the secretary was using for research on the history of the congregation.
Had it in my hand as I walked into the council chamber, when the wife (both are professors at a nearby university in, shall we be kind and say, the "soft sciences") of one of the council members stopped me.
Seeing my bible she tried to snatch it out of my hands, when that didn't work, she gave me a long harangue about the falsehoods in Christianity, there is no God, how atheism is the only option for "reasoning" people, and gave me a note with the web address of American Atheists.
So yeah, rh, maybe you're right about people proselytizing at public forums being assholes is right on the mark.
Wonder what Breyer thinks of "God Save this honorable court"? I guess it's a pretty short saying, shorter than a more formal prayer.
mccullough said...
Wonder what Breyer thinks of "God Save this honorable court"? I guess it's a pretty short saying, shorter than a more formal prayer.
It always makes the hair on the back of his neck stand up, kinda like just before you get a really big static electric shock.
"It's a test test."
You need a test if you want the lower courts to be able to decide similar cases similarly. But the only test on display in this case got precisely one vote -- the first part of Thomas' opinion, and his test would make it all go away for federal federalism reasons. That's the best kind of test test, since it guarantees that similar cases will be decided similarly by the lower federal courts -- dismissed, good bye, try your luck in state court. The state courts could then deal with it, or not, under whatever state equivalent of the Establishment Clause they might discover hiding among the interstices and penumbras of their own constitutions. Elegant, in its deconstructed way. One reason, no doubt, why the others hated it.
"Has what has been historically accepted historically been accepted?"
Thomas deals with that one, too, in showing that the Establishment Clause was against it before it was for it. And, now, that pathetic little Clause doesn't not where it stands or what it stands for. Quite fitting, against that historically unhistorical setting, how casually the incorporation issue was brushed aside when all of this Establishment Clause stuff was just getting started federally. Thomas cites lots of scholarly critiques, relying especially on former Judge McConnell's work. But no one else wants to give Thomas the time of day. Pity, 'tis.
So what is the imperative that keeps these judges at it, with their test tests that test nothing, all in service of some ideal that could be better achieived, if it were worth achieving at all, but others better placed to achieve it? It's the unwillingness to let go of the power to decide. It's the first and iron law of every bureaucracy, including those for which a black robe is the fashion du jour.
Does the phrase, "Congress [government entities] shall make no law respecting an establishment of religion, ...," include opening a meeting of a government body with prayer?
Rocket science for left-wing pinheads, judges and law professors.
For the rest of us? Not so much.
Whenever I am thinking about the proper precedence of historical meaning, I just remember the lyric:
"Don we now our gay apparel . . . "
and it all becomes clear.
"Look, what the SCOTUS majorities over the years have plainly been trying to avoid is a separation-of-powers case on the constitutionality of prayers in the US Senate and House. Once you get that basic point, everything falls into place."
What? Marsh easily already resolved that. There's nothing like that being avoided.
Town of Greece was harder than the legislative prayer case Marsh.
R.Dolan: "So what is the imperative that keeps these judges at it,...? It's the unwillingness to let go of the power to decide. It's the first and iron law of every bureaucracy, including those for which a black robe is the fashion du jour."
Well said. It is also, in some cases, the unwillingness to condone any word or action that conflicts with the secular progressive agenda.
It's legislative history.
Constitutional mumbo-jumbo aside (does anyone really know what thing means?), I've always found it touching that legislators invoke God before doing the work of Satan.
Constitutional law doctrinal test?
Is that basically "stuff we, or our predecessors, made up"?
I ask because historical meaning has an independent source of legitimacy, namely, it was what the people who voted on the constitution thought that they were voting on.
Yes, I know that texualism isn't as much fun for lawyers, but if we're going with stuff that wasn't voted on, it's unclear why we'd prefer your stuff to mine.
If elections don't have consequences, other things will.
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