Another Establishment Clause case, another 5-4 decision. Another fact-specific ruling in which Justice Kennedy provided the deciding vote. Another separate opinion by Justice Thomas arguing that it makes no sense to apply the Establishment Clause against the States in the first place. More high-blown rhetoric about What American Means and why the Court’s decision honors our traditions or betrays them. Just another day at the office for the Justices.
It’s possible to see yesterday’s decision in Town of Greece, the legislative prayer case, as just one more, muddy Establishment Clause case that doesn’t settle much of anything. Justice Kennedy’s opinion for the Court doesn’t announce a hard-and-fast rule. Indeed, he wrote, “it is not necessary to define the precise boundary of the Establishment Clause where history shows that [a] specific practice is permitted.” Legislative prayer has a very long history in America, dating back at least to the Framing. The Town of Greece’s practice of having prayer before the start of town board meetings fell within that tradition. The Justices adduced several facts to support this: The town had made reasonable efforts to be inclusive, selecting clergy at random from a community guide; prayers took place before the part of the meeting devoted to legislative business; people could come and go as they pleased; there was no indication that the town had deliberately discriminated against minority religions. In a helpful concurrence, Justice Alito pointed out that the difference between the Court’s opinion and Justice Kagan’s dissent turned on disagreements about the proper interpretation of one or two facts.
All this is true. We may look back at Town of Greece as a narrow holding without great consequence. Yet something tells me this decision could turn out to be quite significant. Let me make two quick observations about what I see as important themes in the case: the rejection of nonsectarianism and the embrace of localism.
First, the Court stated very clearly that neutrality does not require that legislative prayer be nonsectarian. It is constitutionally permissible, the Court held, for a town to invite only Christian clergy—or just about—to offer prayers, as long as the town does not intentionally discriminate against minority religions and as long as the prayers do not create a pattern of proselytizing or disparagement of other religions.
This suggests an important shift. A major theme (among others) in the Court’s recent public religious display cases—cases involving creches and the like—is that government displays must be nonsectarian. Religious displays that suggest a preference for one religion over another are unconstitutional. In the context of legislative prayer, however, the Court now seems to be moving away from that principle. Of course, the Court may continue to insist on nonsectarianism outside the legislative prayer context; future cases will tell. But the Court’s willingness to allow sectarian religious expression in this case is a development worth watching.
Second, the Court’s opinion gives a great deal of deference to local governments. The town’s employees could have taken additional steps to make sure the clergy they invited were not so overwhelmingly Christian. Instead of relying on a community guide listing places of worship within the town—all of which were Christian—they could have expanded their search to the surrounding area. For example, many Jewish residents of Greece worshiped at synagogues across the town line in Rochester. If the employees had done a little more research, they would have known this, and they could easily have asked the rabbis from those synagogues to participate.
The Court was not willing to require any more from the town, however. In fact, in his concurrence, Justice Alito argued that it wouldn’t be fair to require more, since “the informal, imprecise way in which the town lined up guest chaplains is typical of the way in which things are done in small and medium-sized units of local government.” To require more could dissuade “local officials, puzzled by our often puzzling Establishment Clause jurisprudence and terrified of the legal fees that may result from a lawsuit claiming a constitutional violation,” from allowing legislative prayer at all.
The deference the Court showed the Town of Greece is significant, I believe. Steve Smith has written about the desirability of local solutions in Establishment Clause cases. The Court seems to be endorsing localism in this case. Towns are not required to have legislative prayer, of course. But those many towns that do wish to start their meetings with prayer—even exclusively Christian prayer—will now be able to do so, as long as they show that they made reasonable efforts to be inclusive. And if the only places of worship in town are Christian, then it’s reasonable for the town to have only Christian prayers. That’s the upshot of the Court’s decision.
In my law and religion seminar, I tell students that most of our fights about the Establishment Clause boil down to this: What can a religious minority reasonably require of the majority? Or, put differently, how far must the majority go to accommodate the sensibilities of the minority? Here, the Court seems to be saying, if a town is overwhelmingly Christian, non-Christians cannot legitimately expect that legislative prayers will be anything but overwhelmingly Christian. To insist on something else would be unreasonable. What about those few citizens who do object to the repeated recitation of Christian prayer at town meetings, who feel genuinely offended? What word does the Court have for them? Well, there are other towns.
