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Wednesday, May 07, 2014

Geography and Town of Greece v. Galloway: A #Prawfspitch

I've been thinking and, in draft, writing about geography and church-state relations over the last couple of years. It seems to me a fertile area in which not enough work has been done, and given the (also underexploited) overlap between race and religion, it is an area in which much more could be done to adopt or adapt materials like this. (More directly on point, I strongly recommend this book, which summarizes a series of books.) The subject has been much on my mind in the last two or three days while reading and commenting on Town of Greece v. Galloway. I assume plenty of people are sharpening their keyboards to write longer scholarly work on the case, and I thought I would offer, for what little it's worth, some ways in which the opinion more or less obviously intersects with questions of geography and church-state relations. All of these suggestions are yours, for the price of a mere footnote.

1) The most obvious connection is the piece of Justice Kennedy's ruling that concludes that the town's failure to reach outside its boundaries in seeking people of other faiths to give invocations, which was particularly important in the case given the fact that there were synagogues located nearby and serving the town's Jewish population, does not constitute a violation of the Establishment Clause. Justice Kennedy writes: "The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimina­tion, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing." As I said in my SCOTUSblog post, this is both reasonable and troubling. It makes some administrative sense, and reflects the idea that an invocation at a local government meeting will serve and mirror the local community. But political borders are neither purely adventitious nor utterly innocent, whether one is thinking about race or religion. (Mark Tushnet has a post raising similar questions.) 

2) On a related point that I mentioned but buried deep in my earlier post today, Justice Kennedy wrote a concurrence in the Kiryas Joel decision that deserves to be read alongside and against his opinion in Town of Greece. In saying so, I'm not suggesting that the two are irreconcilable. I do think, however, that one might help illuminate the other, and perhaps bring out some important tensions. 

3) A broader point of the geography of church and state is raised by the Town of Greece decision, one that we generally pay less attention to because of our assumptions about the national uniformity of constitutional law. Again, I would recommend here the book One Nation, Divisible: How Regional Religious Differences Shape American Politics, by Mark Silk and Andrew Walsh. That book, summarizing a series of other books, discusses the different ways in which religion tends to manifest itself in different regions of the United States, and the different forms of church-state relations and controversies that these regional differences produce. These differences have and will certainly play out in different forms of and fights over legislative prayers. Justice Kennedy's description of the nature and purpose of legislative prayers, however, assumes that legislative prayers have a particular, universal form and function, and that divisions over them, and solutions to those divisions, will be equally universal. In deciding Establishment Clause cases, the Court may sometimes make assumptions and offer solutions that might work well in some parts of the country and not in others. 

4) There's also a somewhat more abstract question of the geography of church and state involved in Town of Greece; it appears mostly in Justice Kagan's dissent, about which I still hope to say something. Kagan writes, in the opening lines of her dissent: "A Christian, a Jew, a Muslim (and so forth)—each stands in the same re­lationship with her country, with her state and local communities, and with every level and body of govern­ ment. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American." This idea itself reflects a longer set of assumptions about the nature of political sovereignty and the place of religion within nation-states. In his book Pluralism, William Connolly describes it as follows: "The Westphalian accord in early modern Europe recognized the sovereignty of each European state over its citizens by pushing religious differences into the private realm." Of course, this idea has always been subject to refinement and contestation. Kagan's dissent, which I find somewhat underdeveloped and unsatisfying on this point, might be fruitfully explored in this light.

5) More obviously, there is Justice Thomas's concurrence, which pushes again on the question of whether the Establishment Clause is or is capable of being incorporated against the states. (This is the section that features the soon-to-be-famous words, "As an initial matter, the [Establishment] Clause probably prohibits Congress from establishing a national religion.")

6) On a more direct note, I hope that one of the people writing about these kinds of questions will be Rich Schragger of UVa. His work on the relationship between localism and church-state law is wonderful, and I think he would have a lot to say about this case that would be surprising, one way or another. His co-authored post on Town of Greece is good, but I think based on his past work that if he expanded on the introduction provided there, it might take him to very different places than his co-authors. I would definitely read that article.  



Posted by Paul Horwitz on May 7, 2014 at 11:36 PM in Paul Horwitz | Permalink


One of my colleagues at UC Davis Law, Lisa Pruitt, has done recent interesting work on spatial privilege, including an upcoming article discussing the idea that urban settings are so much the norm that judges often forget about other ways of life. Here is link to a book chapter abstract that touches on some related topics: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2243757

Posted by: Vikram Amar | May 13, 2014 4:05:13 PM

I noted Mark's post @ Balkinization with interest as I am from the greater Rochester area.

Much of the housing stock in Greece and the western 'burbs is going to post-date Shelley v. Kraemer (1948) in age, but without looking I don't think we can rule in or out the possibility that older neighborhoods and houses were subject to racially restrictive covenants as many places in the country were. Wikipedia indicates that the City of Rochester at one point annexed what was a part of Greece (early 1900s) so that it could take over and operate a Lake Ontario port located there.

Like most areas, Rochester and its 'burbs has various neighborhoods that reflect racial, cultural, and religious affinities (East Rochester is Italian and Catholic; affluent Pittsford is WASP-y and Protestant, but also Jewish; affluent Brighton is Ashkenazic Jewish; middle class Fairport is white and European; various neighborhoods in the city are African-American). Not sure these are all nefarious patterns driven by restrictive covenants so much as natural patterns arising from groups desiring to live within close walking distance to a synagogue, live close to extended family and groups that share linguistic and cultural similarities (including my all important criteria of food!), etc.

None of the above is meant to justify Kennedy's approach in Town of Greece. As a rule, I dislike his fuzzy and grandiloquent writing style. It's as hard to teach as it will be to try and apply on the ground. I expect it will generate more heat than light going forward.

Posted by: TS | May 8, 2014 8:48:09 AM

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