Learning From Bedrosian, Cavanaugh, and Town of Greece v. Galloway

Rushing to speak about the latest church-state Supreme Court judgment is not just a sport for law professors. Legislators can do it too. It did not take long for Al Bedrosian, a member of the board of supervisors of Roanoke County, Va., to speak up, in rather moronic fashion. Bedrosian had urged the board to reject a nonsectarian prayer policy. After the ruling, he made clear not only that he did not want a non-sectarian policy, but that he wanted individual supervisors to approve individual prayer-givers and that as far as his own choices were concerned, he would not be inclined to approve "representatives from non-Christian faiths and non-faiths, including Jews, Muslims, atheists and others." Quoth Bedrosian: "I think America, pretty much from founding fathers on, I think we have to say more or less that we’re a Christian nation with Christian ideology . . . . If we’re a Christian nation, then I would say that we need to move toward our Christian heritage." In the story linked to above, Dahlia Lithwick of Slate writes that "[Justice] Kennedy’s plurality opinion Monday [in Town of Greece] opened the door to precisely this line of argument as a result of all his airy talk of religious tradition and history," that the opinion "open[s] the door for Bedrosian to zone out the Muslims and the Jews," and that "[t]he real worry after Town of Greece is that we get to pick, apparently by popular acclaim, which are the American religions and which are the un-American ones." More on this below. 

Also on my mind these last couple of days has been a government official from my home state of Alabama, the wonderfully named Twinkle Cavanaugh, president of the Alabama Public Service Commission. Last summer, a minister, described as a friend of Cavanaugh's, gave an invocation at a commission meeting in which he begged God's forgiveness for our nation's wicked ways, saying, ""We've taken you [God] out of our schools and out of our prayers. We have murdered your children. We've said it's okay to have same-sex marriage. We have sinned and we ask once again that you forgive us for our sins." (Of note, given one of the debates in the Town of Greece case: the video suggests the minister faced the audience, not the board.) Cavanaugh defended the prayer, naturally.

 

What does Justice Kennedy's opinion in Town of Greece v. Galloway have to say to people like Bedrosian or Cavanaugh--and what do incidents like this say about the opinion?

I think Lithwick, despite her parsing of the opinion, is mostly wrong to say that it opens the door to a policy like Bedrosian's or to the policy that someone like Cavanaugh might opt for. Kennedy is clear, or clear-ish, that "If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, . . . [t]hat circumstance would present a different case than the one presently before the Court." The purpose of an invocation is supposed to be to solemnize an event, not to serve as a soapbox or proselytizing forum. A pattern "of prayers that over time denigrate, proselytize, or betray an impermissible government purpose" may establish a constitutional violation. While a prayer policy that, tracking local borders, ends up being nearly entirely Christian will not transgress the Establishment Clause, the governmental body in question must "maintain[ ] a policy of nondiscrimination." In his concurrence, Justice Alito adds that he would have viewed the case "very differently" if the omission of local synagogues by the Town of Greece "were intentional." 

It is quite clear that Bedrosian's policy violates these precepts. It seems equally clear that if there were a "course and practice" on the part of someone like Cavanaugh of inviting invocations that served as a general opportunity for rather opinionated and potentially denigratory prayer rather than solemnization, a court following Town of Greece would be empowered to act. Active, intentional "zoning out" or "picking" of particular faiths, or using a prayer policy as a forum for moral revivalism rather than somewhat platitudinous (if sectarian) solemnization, are not now entitled to free rein.

I said "mostly." As Howard writes elsewhere on this page, and as Chris Lund writes in his contribution to the SCOTUSblog symposium, it will be more difficult to show a "course of practice" than to single out particular prayers as impermissible. Cavanaugh might get one, two, or several byes, although if she maintained a pattern or policy of inviting invocations like the one described above, in theory the practice ought to be redressable. There is also the question of how interested the Court really will be in these issues going forward, and how lower courts will respond; Town of Greece gives them adequate tools, but there is no guarantee they will use them. And while I think Lithwick's particular description of "zoning out" minority faiths is wrong, it is true that the Court demonstrates a somewhat touching faith in political borders, and would appear to have no problem if a prayer policy that was not actively discriminatory nonetheless ended up excluding minority faiths simply because the local houses of worship within a set of political borders belong to one faith. (Someone will have to take up the work of reading Kennedy's opinion in Town of Greece against his concurrence in the Kiryas Joel case.) 

Howard notes that not every public official will be as blatant as Bedrosian. That leads me to my last point, which has to do with what Justice Kennedy might learn from Bedrosian or Cavanaugh rather than the other way around. Kennedy paints a rather neat picture of legislative prayer as "lend[ing] gravity to public business, remind[ing] lawmakers to transcend petty differences in pursuit of a higher purpose, and express[ing] a common aspiration to a just and peaceful society." And in defending the practice, he writes, "A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent." Those words, taken together, suggest that there is a long and calm practice at work, and that suddenly erasing it would open up an unfortunate new front in the culture wars.

But legislative prayer is not just an unbroken, calm tradition. (If it is that at all, but nothing turns on that for my point here.) It is also, at least sometimes, a deliberate, and deliberately introduced, front in the culture wars. If Bedrosian wanted mostly Christian prayers, he could probably have relied on religious demographics and political borders to do his work for him. But that does not mean his blatant statement the other day was a clumsy error. He may have wanted the attention more than he actually wanted the prayers. He may have wanted to speak to a subset of the primary voters of Roanoke County more than to the Christians of Roanoke County as a whole. By the same token, I assume Cavanaugh sincerely believes what the minister who gave that invocation had to say. But even more strongly, I suspect that, with one eye on future primaries and future offices of her own, she would rather be seen to be condoning a divisive, non-solemnizing prayer than to select ministers who would make milder statements and draw no attention to her at all.

That does not mean Kennedy's descriptions of legislative prayer are always wrong, or that the opinion is utterly wrong. (As I've written elsewhere, I think legislative prayer is a constitutionally questionable practice; and as I wrote yesterday, I have issues with Kennedy's opinion. But not necessarily because of Bedrosian or Cavanaugh.) But it does suggest that there is too much milquetoast in his description of legislative prayer. It also suggests that his description of the occasions for political division along religious lines is too limited. It is true that getting rid of legislative prayer at one fell swoop would be divisive. But it's also true that sometimes, particularly in the hands of primary-minded politicians, legislative prayer can be intended to divide, not to solemnize. In the short run, at least, given Town of Greece, I suspect that the most effective forces in counteracting this use of legislative prayer for deliberately divisive political purposes will be the supporters of legislative prayer, who have an obligation to condemn this kind of behavior, and not its general opponents.