by William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
There are myriad critiques that one might level at the Town of Greece v. Galloway decision—its lack of concern for messages of exclusion and the protection of minority religious rights being at the top of the list. But lack of predictability is not one of them.
My guess is that not many people were ultimately surprised by the decision. Most everybody expected that the Court was not going to use the case to significantly alter existing Establishment Clause doctrine. Most everybody predicted that the Court’s decision would likely be 5-4 and that Justice Kennedy would cast the deciding vote. And most everybody agreed that because the decision would rest with Justice Kennedy, the Court’s opinion would be indecipherable no matter which way he sided. The oracles were three for three.
Let’s begin with prediction one. That the Court might overturn Marsh v. Chambers, the 1983 decision upholding legislative prayer was never really much of a possibility. The plaintiffs themselves argued only that the Town of Greece’s prayer practice should be modified to be less sectarian and more inclusionary and even Justice Kagan’s dissent did not call for invalidating all legislative prayer.
Nor was it likely from the other side that the Court would overrule precedents limiting government sponsored prayer in more controversial settings such as public classrooms and public school graduation ceremonies. Justice Kennedy, after all, was the author of Lee v. Weisman, the decision that specifically invalidated convocation prayer.
With respect to prediction two, it was difficult to imagine the case being decided by anything other than 5-4. Certainly, it was unlikely that any in the conservative bloc would jump ship. Justices Thomas and Scalia had already indicated they had no quarrel with prayer at graduations and football games much less town board meetings; and neither the Chief Justice nor Justice Alito had given any indication that strict first amendment disestablishmentarianism was a concept they might embrace. (Justice Alito’s Galloway concurrence, however, is notable for outlining some government sponsored religious exercises that he would find unacceptable, suggesting that his views on government sponsorship of religion may be more restrictive than some of his conservative colleagues.)
Some defection, I suppose, could have been possible from the other side. The Obama Administration had argued in support of the Town of Greece so there was a least some suggestion that upholding the Town’s practice was not outside the bounds of those normally associated with progressive legal thought. But the four moderates rejected DOJ’s enticements and stayed firm.
That leads us to point three, the inevitably of a tangled opinion. Actually, Justice Kennedy’s opinion began clearly, if not persuasively. He accurately pointed out that the prayer upheld in Marsh was not non-sectarian (as it sometimes has been described in subsequent writings) and he also pointed out that government-sponsored prayers during the founding period had a similarly sectarian bent. But then the fog settled in. In contesting the notion that the Town of Greece should strive to develop a more non-sectarian and inclusionary approach to its prayer practices, Kennedy argued that it would be problematic for the courts to review prayers for their content: “[G]overnment may not seek to define permissible categories of religious speech. Once it invites prayer into the public religious sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.”
Yet, then, literally in the next sentence, Kennedy completely contradicted himself: “In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content” (although, of course, that is exactly what the sentence “government may not seek to define permissible categories of religious speech” explicitly states). Rather, for Kennedy, town policies that permit prayers that “denigrate nonbelievers, threaten damnation, or preach conversion” could potentially violate the anti-establishment mandate. So apparently, it is beyond the province of civil authorities to evaluate prayers for non-sectarian content but it is within their province to evaluate prayers for improper proselytization and denigration. Good luck to communities and to lower courts that are charged with navigating this one.
In the end, the real problem with the Galloway decision may not be that it upheld the particular prayer protocol of the Town of Greece but rather that it will only encourage communities to further push the envelope towards increasingly sectarian practices. After all, telling religious leaders that the words they chose to use in their public prayers should be bound only by their own consciences is not an invitation for ecumenicalism (although it might be an invitation for them to bring a first amendment lawsuit if their particular sectarian message is deemed out of bounds by their legislative body).
So, in the end, one other prediction about the Galloway decision is likely to be a safe bet. The case will likely trigger more litigation than it resolves.