Posts Tagged ‘Antonin Scalia’

Galloway v. Greece: a Lemon Test no-brainer

August 7, 2013

Following a relatvely mixed ruling from the Second Circuit on the question, the Supreme Court decided a few months ago to take up the issue of whether or not municipal or state legislatures should be able to open their legislative sessions with sectarian prayer. The case, Galloway v. City of Greece, is based on a fact pattern familiar to every level of American government, from the Senate to local town councils: the legislative body in question opens its sessions with a prayer, almost universally led by Christian clergy, using ambiguous or non-existent criteria for selecting the clergyman or vetting the content of his (the clergy invited to perform the incantations are almost universally male) prayers, during hours that the legislature in question is supposed to be doing the business the taxpayers pay them for.

According to the briefs filed by the respondents, on facts that the Second Circuit noted were basically uncontested, the town of Greece, New York, fits the familiar pattern to a T:

The Town Board in Greece, New York, opens its monthly meetings with clergy-led prayer. With the exception of a four-meeting hiatus around the time of the filing of this lawsuit in 2008, the Town has relied exclusively on Christian clergy, who have persistently delivered overtly Christian prayers. Many of the prayer-givers have elaborated on Christian tenets and celebrated the birth and resurrection of Jesus Christ; one asked attendees to recite the Lord’s Prayer in unison; and another criticized objectors to the prayer practice as an “ignorant” “minority.”

Clergy request that attendees join in the prayers. Town Board members participate by bowing their heads, standing, responding “Amen,” or making the sign of the cross. Members of the audience do the same. At the conclusion of the prayer, the Town’s Supervisor typically thanks the prayer-giver for serving as the Town’s “chaplain of the month,” though he did not bestow this title on the few non-Christians who delivered the prayer in 2008. Many members of the audience are required to attend the meetings; children also routinely attend to fulfill a high-school civics requirement.

In short, the question before the Supreme Court is whether or not it is appropriate for the state to invite religious proselytizers of an almost exclusively Christian background to pray, and compel government officials and non-governmental attendees ranging from children in mandatory high school classes to public onlookers, to join in their proselytizing, on government time, using government funds, in government facilities, on behalf of the taxpayers, without violating a Constitution that expressly forbids the government from establishing a state religion.

This should be a brainer-free case. The flagship judicial test for whether or not the government has violated the First Amendment’s proscription against the establishment of state religion (hence the “Establishment Clause“) is the Lemon Test. Despite all attempts by the conservative wing of the Supreme Court to curtail the use of the Lemon Test, it remains the most common, and most accessible, test for whether or not an action by the state unconstitutionally establishes a state religion or otherwise infringes on the religious liberties of American citizens.

The relative paucity of brainers in this case is exemplified in some of the amici (“friend-of-the-court” briefs, basically, legal briefs written by parties that aren’t part of the lawsuit but that have some other interest, such as a moral conviction or political affiliation, related to the case) that have been filed for Greece by such notable champions of the separation of church and state as the Southern Baptist Convention (my religious alma mater) and the Republican-controlled Congress. The Southern Baptist Convention points out that denying the power of legislatures to open with sectarian prayer raises the ghastly specter of a Unitarian takeover of America. And as for the Republicans’ brief, well, lets just say that its “table of authorities” includes one actual statute, seven actual cases (more than half of which were decided in favor of the secular side of the case), and ten Bible verses.

Now, on the Lemon Test, there isn’t much to argue about. The Test comes in three prongs; to wit:

1. The challenged state action must advance a valid secular governmental interest
No prayer advances any valid secular governmental interest. The government’s interests are diverse and many, but none of them seems ever to have been advanced or protected by inviting sectarian interests, almost entirely Christian ones, to spend legislatures’ time praying. Now, either prayer is capable of causing real change in the world, or it isn’t. If it is, then whatever beneficence the Almighty seeks to bestow upon the peoples’ representatives are likely already accounted for in his divine plan (for the Calvinists in the audience), or, it can be accomplished just as easily and somewhat less controversially through the legislators’ private prayer rights that are absolutely and unreservedly protected by the First Amendment. And if prayer isn’t so powerful, then no amount of public pandering to religious interests will yield advance any secular governmental interests whatsoever, except for the interest individual legislators have in getting re-elected by friendly religious voters.

2. The challenged state action must not needlessly advance one religious interest over others
The key word in this arm of the test is “needlessly.” Many government actions advance religious interests: for example, tax exemptions for religious institutions doubtlessly advance religious interests, but the rules for those exemptions are so broad and ecumenical that even mafioso cults like Scientology qualify. But a significant component of the complaint in Galloway is that the city council’s prayers are almost entirely delivered by Christians, and the invocations often extend far beyond simple intercessory prayer into outright evangelism. For example, according to the complaint, there has been exactly one attempt to have a Jewish prayer open the town’s sessions, and it wasn’t even clear whether or not the person invited to deliver that prayer was a Jewish clergyman or simply a layman of Jewish background. Given the relative media hubbub that erupts whenever, for example, a Hindu or a Muslim clergyman is selected to lead such prayers in Congress or other legislative bodies, combined with the dire statistical summaries of who leads the prayers in the town of Greece given in the complaints, it stands to reason that the legislative prayer sessions are uniformly Christian in nature, they are highly sectarian, and they are often evangelistic in nature.

3. The challenged state action must not needlessly entangle the state with religion
This arm of the test is the heart of my own objections to legislative prayer sessions. How does the Congress determine who is “qualified” to give an invocation? Does the Congress, or the town of Greece for that matter, have either the authority or the competence to investigate somebody’s religious background sufficiently to know if the prayer they are giving is “accurate?” The very existence of this case suggests that the government is getting too tied up in internecine religious arguments for its own good by having these prayers at all, since the case forces us to investigate the bona fides of public prayer leaders in a way that the state is usually forbidden to do. We don’t want the state deciding that person x is a “real” Christian but that person y is not, that person x’s religion is appropriate for public display but person y’s is not. And yet the scheme of legislative prayer sessions forces us to do just that.

So, if the Lemon Test jurisprudence is so clear, why is this even an issue? Well, as the Second Circuit pointed out, the Supreme Court has had to examine the Constitutional muster of legislative prayer sessions, but in the flagship case in that area, Marsh v. Chambers, the Court did not apply the Lemon Test at all. Instead, the Court provided an articulate and interesting but I think entirely off-topic examination of the long history of American public bodies using prayer on taxpayer time and ruled accordingly. But the Court did not pause to ask itself the basic question of whether or not a violation of the Constitution is validated just because the state has done it a lot, as if the First Amendment comes with a grandfather clause or a statute of limitations, as if the Constitution contemplates ratification of unconstitutional acts just by doing them over and over again for a long time!

As such, while the legal question may be one about the legality of state-sponsored prayer, the practical question is whether or not the Supreme Court will actually use the Lemon Test in answering that question. As I’ve mentioned, the Lemon Test has sometimes been criticized by the conservative wing of the Court, mostly for delivering results unpalatable to Antonin Scalia personally and his acolytes by association. The Court has not clearly spelled out a precise test for when the Lemon Test is appropriate, instead seeming to apply it according to whether or not the outcome desired by the majority can be reached through that test or not. If it can be, the Lemon is hailed as the mainstay of Establishment Clause jurisprudence, and if it can’t, then the Lemon Test is derided as a relic of the liberal excesses of the mid-20th-century Supreme Court. It remains my hope that the Lemon Test, a perfectly lucid and logical exposition of the soul of the secular framework of the Constitution, will be used and will yield the appropriate outcome. If not, we leave it to the future leaders of America to see what happens when you combine political gridlock with religious gridlock, and hope that you all enjoy the outcome.


Robert Bork the Catholic

January 3, 2013

We recently lost Robert Bork, a relatively clever jurist better known for his bloody and ultimately unsuccessful Supreme Court nomination. Accurately or not, his was a nomination almost immediately attacked by a coalition of liberal interests from civil libertarians and civil rights advocates to reproductive rights advocates and the ACLU to Ted Kennedy, ultimately failing by a solid majority in the Senate. This puts Bork in the whopping 8% of Supreme Court nominees to have a confirmation rejected after a full vote by the Senate, though this was far from the end of his long and successful career.

Something you may not know, something more apropos to a skeptical blog than his CV, is that Bork is a convert to Catholicism. While a fellow of the American Enterprise Institute, his second wife (his first wife died in 1980) introduced him to the Church, one of whose agents told him that his views were closely aligned with those of the Catholic Church. He formally converted in 2003 with some hand-waving references to intelligent design and a close alignment with its social policies. While he waited until his 70s to convert (advantageous, Bork said, because by that age one was too old to commit any more interesting sins anyway so a single absolution should suffice), there are certainly hints of his affinity for Catholic thinking in his judicial career, and not just in his social policy. While Bork spent much of his post-confirmation failure claiming that he had been slandered and smeared by the American left, the fact that Bork saw such similarity between himself and an authoritarian, anti-woman, anti-gay, fiercely plutocratic organization speaks volumes as to the sincerity of those objections.

Bork’s views on homosexuality were mainstream for 20th jurisprudence, which is to say, rather unfriendly to the gay crowd. The parallel to Catholic theology is clear, but again, this criticism of Bork isn’t entirely fair because there were no significant pro-gay judges in the 20th century who had any meaningful impact on the law. More telling is his affinity for the jurisprudential framework called originalism.” Originalism is the view that the only appropriate reading of the Constitution is to pretend that the authors of the Constitution all thought the same thing about each of its provisions, then pretend that you know what they were thinking using your modern interpretive lens (Scalia, for example, has very strong ideas about what the Founding Fathers thought about weapons that hadn’t yet been invented in the 18th century), then decide the laws of a 21st-century nation according to the products of those various imaginings. Originalism is a deeply religious concept; the Catholic Church, too, prioritizes the antiquity of a document as a marker of its authority over its actual persuasiveness. Originalism holds up the actual text and structure of a founding document and confers authority upon it not in virtue of its actual merits as a framework for a well-ordered society, or for the outcomes that it yields in terms of equity or justice, but simply because of who wrote it and how old it is.

I describe originalism sarcastically because it makes very little sense to me. I think that it has problems of both its outcomes for constitutional interpretation and in its internal coherence. But Bork was one of its luminaries (strange that an ideology so geared towards the Constitution’s origins has only seen its greatest popularity centuries after those origins), and he religiously advocated that religion-like doctrine.

Originalism is a not unpopular legal doctrine and so it is no particular black mark on Bork’s record that he, along with Antonin Scalia, virtually founded the modern originalist movement. Less flattering to his legacy as a jurist, though perhaps more important to his legacy as a Catholic, is the book he wrote in the mid-90s while at the Enterprise Institute, Slouching Towards Gomorrah. I read the book in preparation for writing this post, and I must say, it is a real disaster as far as what one should expect from a decently able-minded jurist. Where Bork’s other written works, such as his treatise on antitrust law, are polished and more thoroughly-cited than a law review article, Slouching is more like what I would expect from a merely average Christian whiner targeting the late-70s, white, Christian, “get-off-my-lawn!” crowd. Without going into much detail beyond “moral terpitude,” Bork spends the book attacking everything even vaguely associated with political leftism from reproductive liberty to pornography to “bra-burning” (he is unperturbed by the fact that bra-burning was never actually a thing), and in the good Catholic tradition, he roundly blames virtually everything not advocated on the 1962 GOP party platform for the “decline” of America (his book was written during the historical peak of American prosperity; in fact, the “decline” that he describes as beginning in the 1960s was in fact interrupted by only a single lengthy economic downturn: the Reagan era).

Grouchy social conservatism and originalism are defining features of the Catholic Church, and they are the two things that Bork may be most remembered for. Which is too bad, because Bork was not by any stretch an unlettered fellow, and he would probably have been a significant presence on the Supreme Court. He hopefully would have learned a thing or two while there. But now he is lost to us, and unfortunately he is commended to history with a lengthy screed against the damn hippies and a rare but highly cinematic failure before the Supreme Court to his name. In remembering him, I encourage you to pursue his more important works, especially his inquiry into antitrust law, since though today he may be more widely-known merely as a political ninny, the first to be “Borked,” he was wiser than that as a scholar, and more sinister than that as a man.