Tuesday, May 06, 2014
Town of Greece and Iqbal
A funny thing about Town of Greece v. Galloway: I am not outraged or panicked about the future, as I somehow feel I should as a Jewish liberal Democrat. (Update: Perhaps I am not alone). I would have dissented were I on the Court, but I do not see the majority as tragically wrong. Maybe because Paul is right. Maybe because I know I am a religious minority and am not bothered by being reminded about that. Maybe because I do not attend town council meetings. Maybe because I have never lived in the type of community likely to use this decision as a reason to start those council meetings with pervasively sectarian or proselytizing prayers.
I do find troubling the utterly illusory nature of the (already small) opening the plurality left for challenging legislative prayers. Justice Kennedy stated this opening three different ways: "If circumstances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course." And "[c]ourts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood." And "[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose," there is no constitutional violation.
But it seems unlikely that a plaintiff will ever be able to make this showing. More problematically, it seems extraordinarily unlikely that a plaintiff will even be able to even sufficiently plead this under Iqbal (perhaps not coincidentally, another Kennedy opinion over a four-Justice dissent) so as to have an opporuntity to make the showing. It is easy to imagine the Court sweeping the complaint aside by finding an “obvious alternative explanation” for the government practice that is more plausible than the conclusion of an Establishment Clause violation. So, as in Town of Greece itself, that decade-long streak of only pervasively Christian prayers are a result not of impermissible purpose, but of bureaucratic over-simplification (using the Chamber of Commerce's limited list of houses of worship) or the fortuity of geography (the synagogue is on the other side of the imaginary town line).
Update: Dahlia Lithwick reports that Al Bedrosian, a member of the Roanoke County (Va.) board of supervisors has announced that he will seek to impose a Christian-only prayer policy, admitting that he probably would not allow any other religions, because America is a Christian nation and adherents to other religions are free to pray on their own. Public statements such as this make it easy enough to state a claim. The problem is that most public officials are smarter, saner, or subtler than Bedrosian, or will quickly learn to be. Then, much as with employment discrimination, cases become more difficult to prove and plead.
But not every formulation in the opinion requires an impermissible purpose. He also has a pattern of prayers that threaten damnation, preach conversion, etc. All you need for that is offensive prayer content. Likewise, "whether coercion is a real and substantial likelihood" doesn't require a plaintiff to plead purpose. It seems to turn, in his opinion, on how the people who don't pray are treated - though there you could have an Iqbal problem, inasmuch as alternative explanations could be offered for any disparate treatment.
Posted by: Asher | May 6, 2014 6:10:12 PM
Fair enough, but the Iqbal problem remains, as you say. The demand for a "course and practice over time" means a court easily can find that the plaintiff only pled a few isolated instances, but not a pervasive practice. All of which, of course, is just a proxy for intent, anyway.
Posted by: Howard Wasserman | May 6, 2014 7:04:05 PM
I think you're right, Howard. I said this on SCOTUSBLOG:
The Court is clear about its desire to raise the bar, but unclear on where exactly it means to set it. The Court’s opinion is full of vague and slightly inconsistent phrases. The Court condemns invocations that, cumulatively over time, “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.” But at another point, the Court rephrases the issue as being whether there is “a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose.” Is there a difference there? Later on, the Court adds there might be a problem “if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.” But later the Court seems to change course slightly, saying that the issue is whether the government “allocated benefits and burdens based on participation in the prayer,” “received [citizens] differently depending on whether they joined the invocation,” “signal[ed] disfavor toward nonparticipants,” or “suggest[ed] that their stature in the community was in any way diminished” by not participating. Maybe there is a common core here, but it’s not clear which of the things (if any) is supposed to be the touchstone. And each of them, the Court stresses, is a “fact-sensitive inquiry.”
The predictable result is that no one has any idea where the line is. And perhaps this is the intended result too: The Court wants to set the bar high enough to discourage plaintiffs from bringing these suits, but the absence of any bar whatsoever would only encourage abuses by defendants. If the goal is to paralyze both sides, it’s best to have a very unclear test. (Perhaps the holiday display cases and the Ten Commandments cases are other examples of that.)
Posted by: Chris Lund | May 7, 2014 8:05:41 AM
Chris: Good call on the "allocating benefits" language, which is at p. 21 of the slip op, and which I left out of my original post. In reading the hard copy of the case, I wrote next to that paragraph "How could P ever make this showing?".
Posted by: Howard Wasserman | May 7, 2014 9:57:29 AM
Sadly, this makes Judge Wood's dissent in Hinrichs v. Speaker of the House, 506 F.3d 584, 604-08, 610-12 (7th Cir. 2007), somewhat prophetic. Taxpayer standing is already a questionable reed on which to base standing. If not for some sort of aesthetic or offense-based injury, I have trouble seeing how plaintiffs will be able to plead adequately.
Honestly, barring "smoking gun" statements such as Mr. Bedrosian's, I'm beginning to wonder what's left of Establishment Clause standing. Chaplains, creches, and monuments are dubious, and Hein limits spending challenges severely.
Posted by: Jeremy | May 7, 2014 10:03:50 PM
Jeremy: That's a nice point, hinting at the way merits gravitate into the standing inquiry. This case was about the absence of a violation (i.e., a constitutional harm) from non-prosyletizing-but-Christian prayer. But there is no reason to believe the rhetoric Greece won't be brought up to argue that the next plaintiff lacks standing.
Posted by: Howard Wasserman | May 7, 2014 10:09:28 PM