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Wednesday, May 07, 2014

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.   

Posted by Paul Horwitz on May 7, 2014 at 02:39 PM in Paul Horwitz | Permalink


Paul, I think you're very right about the milquetoast view of legislative prayer hidden in Town of Greece--and the warning that legislative prayer advocates need to police awful choices like Bedrosian's as much as its opponents do. (See also the facts behind Simpson v. Chesterfield County Bd. of Supervisors, which came too early.)

The problem for Justice Kennedy is this: legislative prayer *had* evolved into a stable, peaceful tradition by the time of Marsh--but only in the models examined in Marsh, congressional chaplaincies and the Nebraska chaplain. None of the chaplaincies evaluated in Marsh involved the "chaplain of the month" stuff that has been causing problems for the past decade. The practice *in Congress* stabilized a great deal after the committee reports in the 1850s, and even more so in the mid-20th century after Peter Marshall's short tenure. When Justice Kennedy looks at legislative prayer, that's what he sees. (In fairness, I've been accused of the same blind spot.)

Rick's question is good, and I think it highlights what I would argue is a relevant distinction: perhaps Marsh and Town of Greece are not about legislative *prayer* per se, but rather about legislative *chaplaincies*. The issue of a legislator giving a prayer raises all sorts of thorny issues that were not involved in Marsh, including invocation of the government speech doctrine. Marsh, et al., involve someone else speaking to/for the government (depending on which way she faces). The two are not necessarily the same, and draw on different traditions. (But see Summum, where the government can adopt the speech of another.)

Posted by: Jeremy | May 10, 2014 10:22:47 AM

Professor Horwitz, at the end of The Day, truth is, error is not; it would seem only logical to assume it is better to realize the truth sooner, rather than later.

While it is true that our Founding Fathers clearly stated, "Congress shall make no Law respecting an establishment of religion, or prohibit the free exercise thereof; one can assume, that our Founding Fathers believed that it would not be our shared religious principles that would cause division, but rather, establishing a State Religion, like for example, Anglicanism, and thus a particular form of worship.

What our Founding Fathers failed to recognize, was throughout the History of Man's Salvation, man has rejected God, every time he attempted to create a god in his own image; in essence, every time man has rejected God, he has become a religion onto himself. The rejection of The True God has always led, sometimes sooner, sometimes later, to disorder and chaos. It is that which divides us which keeps us from being in communion.

In answer to your question, that which is permitted does not always serve The Common Good.

Posted by: N.D. | May 9, 2014 10:28:50 AM

Thanks for your comment. Could I ask some questions about application, taking your operating assumption as a given?

1) Are non-Christian legislative prayers legally permitted where a predominantly Christian legislature invites them?
2) In a predominantly, say, Jewish or Buddhist or Satanist political jurisdiction, is the legislature free to offer sectarian solemnizing prayers? With, perhaps, the occasional, accidental inclusion of a prayer expressing sorrow that some people still mistakenly believe in the divinity of Christ and fail to follow, eg, the tenets of Buddhism or Satanism or Judaism? Is such a legislature obliged to search for and include the occasional Christian invocation-giver?
3) Is a predominantly evangelical Protestant jurisdiction where, say, there are some Catholics in town but the nearest church is just outside the borders of that jurisdiction, required to make special efforts to find and include Catholic prayer-givers? Does it matter if, on a couple of occasions, the invoker gets a little carried away and refers to the Church of Rome as the "Whore of Babylon?"

Posted by: Paul Horwitz | May 9, 2014 9:36:16 AM

Professor Horwitz, with all due respect, this is a Nation that was founded on Judeo-Christian principles, as our Founding Fathers recognized our Constitution serves to secure and protect our inherent, unalienable Rights that have been endowed to us from God, from The Beginning, when God created man, equal in Dignity, while being complementary as a son or daughter.

At the period of Time in History, when our Nation was founded, Religious Liberty was intended to complement, and thus enhance the value of the State, not undermine it. If it appears that our Nation is once again divided, it only seems logical to assume, that the source of our division is, once again, the denial of the inherent personal and relational Dignity of the human person, created in The Image and Likeness of God because we have, in essence, created a god, in our own image. Every time we have denied The Word of God, we have suffered greatly individually, and as a Nation.

Posted by: N.D. | May 9, 2014 8:35:57 AM

Rick, thanks for the great question and illustration.

Posted by: A White | May 8, 2014 1:33:14 AM

Rick, thanks for the great question and illustration. I suppose that fairly similar questions could be raised by government speech doctrine more generally, particularly in its interaction with the Establishment Clause, as in Summum or Salazar v. Buono. My writing on the subject has tended to assume that there are differences between what "government" can say about questions of religious truth and what government officials, who ultimately speak for themselves and do not by their own statements present an official orthodoxy, can say. I tend to think the difference is important, but I also think the lines are very hard to draw in this area, including with respect to legislative prayer. Moreover, while I personally have a different reaction to this or other speech depending on whether it represents "the government" or just "a representative serving in government," I am equally sure that not everyone would have the same reaction or draw the same lines. I do ultimately agree that a great deal turns on constituents' views of civic behavior, including whether they see civic occasions as something to be shared, cleansed, or taken back. Hence, to some degree, my closing suggestion that if anyone should be tasked with keeping Bedrosian or Cavanaugh in check, it should in the first instance be those people who insist that legislative prayers are appropriate and/or necessary. I would add that individual representatives also ought to have some sense of the boundaries of appropriate civic behavior--and, often, do not.

Posted by: Paul Horwitz | May 7, 2014 11:52:50 PM

Paul, how much really is at stake in "religious speech" cases like Town of Greece?

Here's a hypothetical to illustrate my skepticism about doctrine. Suppose that, instead of hiring a chaplain to offer a religious invocation, a legislature simply adopted a standing rule giving one of its members in a leadership position the option of beginning each day with a short speech. Suppose further that the designated officer always used his or her floor time to offer up a prayer, saying, "I ask you all to join your hearts and minds with me in prayer to our Lord Jesus Christ."

Should this speech be regarded as a violation of the Establishment clause? I would think not: Members of state and local legislative bodies, by long tradition, can say whatever they darn well please, shielded by legislative privilege analogous to that protected by the Speech & Debate clause. And I assume that the result would not change even if a majority of the members bowed their heads in prayer in response to my hypothetical majority leader's invocation: Their symbolic speech (head-bowing) is also privileged.

Given that judicial doctrine ultimately can do nothing to stop a majority of legislators bent on expressing their religious beliefs in legislative settings, I tend to think that such decisions are empty "superstructure." The "base" -- i.e., the real protection against the psychological marginalization of religious minorities by legislators -- turns on constituents' beliefs about proper civic behavior.

Maybe judicial opinions help reenforce a healthy political culture -- but maybe not: One could imagine that aggressive judicial ferreting out of obnoxious religious declamations in legislative bodies would just egg on the legislators, as yet another judicial opinion against which to grandstand. Get rid of the chaplain, and you now have to listen to pious bombast from the Speaker of the House.

But maybe I am overly cynical about the civic power of what seems to me to be purely symbolic judicial doctrine, easy to evade and, if pressed to hard, more polarizing than beneficial.

Posted by: Rick Hills | May 7, 2014 4:47:06 PM

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