(Please forgive the title, I’ve been drowning my sorrows in ouzo.)
It is fair to say that American secularists, in general, were hoping for a far better news than what we received yesterday in the case of Greece v. Galloway. By way of background, here is the Reuters article and here is a truly superb editorial from Professor Chemerinsky which sums up the decision at hand as well as the general run of Establishment Clause cases under the Roberts court.
There is not a whole lot of good that can be salvaged from this case, but we can count our blessings on at least three points: (1) the majority decision for the most part strove to stretch the facts to fit the legal doctrine, rather than vice-versa, (2) the majority decision preserves the core ideas of non-discrimination and non-proselytization (at least in theory), and (3) Kagan’s dissent lays the groundwork for a much-improved Establishment Clause jurisprudence, should the balance of power eventually change in favor of the separationists.
On the first point, Chemerinsky writes that “the practice in the Town of Greece was exactly what Justice Kennedy said could still violate the Establishment Clause” that is, “a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose.” It is only by very generously interpreting the record from the courts below that denigration and proselytization were ruled out, and the primary dissent does a fine job of showing how far the facts in this case do not fit those of Marsh v. Chambers, which is relied upon here as setting the boundaries for permissible legislative prayer.
As to the second point, there remain at least some legal guidelines in place that municipalities and legislatures will be expected to follow going forward. Justice Kennedy writes, “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 well as the aforementioned bar on “prayers that over time denigrate, proselytize, or betray an impermissible government purpose.” It will be the task of separationist activists to carefully document whenever government bodies establish a pattern of discrimination, denigration, proselytization over time, if we hope to hold them accountable to even the bare minimum laid out in the majority opinion.
Finally, as to Kagan’s dissent, I found it most uplifting to imagine a world in which she starts writing the majority opinions on these sorts of issues. Here is an excerpt:
Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable—that however those individuals worship, they will count as full and equal American citizens. 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 government. 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.
I know that it probably seems overly optimistic to hope that this line of thinking will carry the day any time soon, but it should be noted that Bowers v. Hardwick (1986) was overruled by Lawrence v. Texas (2003) in less than twenty years, and we’ve come a long way towards equality since then.
