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Monday, April 06, 2009

Demographics and Distrust: The Eleventh Circuit on Graduation Prayer in Adler v. Duval County

I can think of no better way to celebrate Prawfsblawg's fourth anniversary than by trying to serve the value that has animated the blog ever since its inception: namely, shameless self-promotion.  (Plus, you know, open dialogue, scholarly community, etc., etc.  Whatever.)

I've posted a new paper on SSRN called Demographics and Distrust: The Eleventh Circuit on Graduation Prayer in Adler v. Duval County. It's forthcoming in an Eleventh Circuit symposium issue of the University of Miami Law Review.  Rather than quote the abstract in full, let me offer a couple of summary points here.  The first half of the paper is fairly conventional, although I hope it is useful.  Adler v. Duval County  involved a policy that permitted students to vote on whether to deliver opening and/or closing "messages" at high school graduation ceremonies.  The Eleventh Circuit, sitting en banc, upheld the policy against an Establishment Clause challenge.  After the Supreme Court remanded the case for reconsideration in light of its decision in Santa Fe Independent School District v. Doe, which outlawed a similar policy in the context of high school football games, the court, insisting that Santa Fe was distinguishable, again upheld Duval County's policy.  In the opening half of the paper, I discuss Adler and Santa Fe and argue that Adler was wrong, and indeed can be seen as little more than an act of willful resistance to the Supreme Court's opinion in Santa Fe.  I hope folks who are interested in Establishment Clause doctrine, and specifically in the question of school and graduation prayer will find that portion of the paper useful.  But the second half of the paper tries to break new ground beyond this, and hopefully will be of interest to a wider range of law and religion scholars; the first half is lengthy, so I hope they will bear with me.  

Here, I argue that both Santa Fe and Adler are fruitful subjects of study for what they say about two issues that have drawn relatively little sustained and serious attention: the role of majoritarian elections within the Establishment Clause, and the relationship between the Establishment Clause and the demographics of religion in local communities.  In particular, I argue that John Hart Ely's representation-reinforcement theory of judicial review, presented in his influential work Democracy and Distrust, can contribute significantly to our understanding of both of these issues.  For a variety of reasons, Ely's theory hasn't been applied much to the Religion Clauses.  I argue that it can and should be, and that it yields some useful insights into the Religion Clauses.  

On the first point, Ely's theory shows why majoritarian election processes that enable or encourage school prayer cannot generally insulate schools from Establishment Clause challenges.  On the second issue, I argue that Ely's theory can help dislodge the usual baseline assumptions about religious pluralism in the United States, which are accurate at the national level but collapse at the level of the overwhelmingly religiously homogeneous local communities in which many Establishment Clause cases arise.  On this understanding, I make a point that might be somewhat controversial but that I find compelling: namely, that, contrary to some recent arguments, the Establishment Clause might best be understood as being more properly concerned with state and local establishments of religion than with federal establishments of religion.  

The source of potential controversy here is not only the non-uniform interpretation of the Establishment Clause that it potentially suggests, but the direction of that non-uniformity.  Some localist constitutional scholars, like Richard Schragger, have recently argued that the Establishment Clause might best be interpreted as having greater application at the federal level than the local level.  Other judges and scholars, like Steven Smith and, famously, Justice Thomas, have argued on an originalist basis that the Establishment Clause should be understood as a jurisdictional provision that applies to federal establishments and not state and local establishments.  I share many of the premises and aims that animate the localist scholarship, but my argument runs the other way, in favor of a more rigorous application of the Establishment Clause at the state and local level than the national level -- a conclusion that I think is compelled by the real-world role of religion, religious diversity (or, more to the point, uniformity), and politics at the local level.  Call it the beginning of a "counter-jurisdictional" approach to the Establishment Clause.

Comments are welcome; indeed, I've already gotten some excellent (and tough!) comments from people on both sides of these issues, and I welcome other perspectives.  Enjoy, and happy anniversary.  

Posted by Paul Horwitz on April 6, 2009 at 10:05 AM in Paul Horwitz | Permalink


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