Like many residents of the Town of Greece, New York, Susan Galloway and Linda Stephens regularly attended the Town Board’s monthly meetings, where votes would be held on proposed ordinances, residents’ input would be solicited and public business would be conducted. Historically, the Town Board began each meeting with a moment of silence, a practice that was replaced by a prayer in 1999. In 2007, Galloway and Stephens complained that the prayers “aligned the town with Christianity” and “were sectarian rather than secular.” In response, the Town scheduled three non-Christians to deliver prayers at a third of the Board meetings in 2008, the year in which Galloway and Stephens filed a lawsuit against the Town. But in the following eighteen months, only Christian clergy delivered the prayer.
Galloway and Stephens’ lawsuit alleges that the Town violated the Constitution’s Establishment Clause in two ways: (1) its procedure for selecting prayer-givers unconstitutionally “prefer[red] Christianity over other faiths,” and (2) it allowed individual citizens to deliver “sectarian” prayers. To engage with this argument, ACS Student Chapters have held events on Town of Greece v. Galloway, which was heard before the Court last month. Gregory Lipper, Senior Litigation Counsel at Americans United for Separation of Church and State, spoke with the Georgetown ACS Student Chapter about the case. “You certainly do not need to be the Pope to know that that is a Christian prayer,” he said, when describing how explicit the opening prayers were at the Town’s meetings.
Addressing the law students, Lipper explained that the Town-appointed chaplain of the month often asked the meetings’ attendees for some form of participation in the prayer, such as bowing their heads, standing, or responding “Amen” as members of the Board stood behind him. As a result, individuals often felt that noncompliance would alienate the Board, the body they had yet to address with their request or case. Lipper claimed that the prayers were not only denominational but also coercive, effectively requiring meeting attendees to participate or risk losing government and/or social support. “Because citizens are there to petition their government, it is especially important that these meetings be inclusive,” he added. “This is where the Town has fallen woefully short.”
by Kent Greenfield, Professor of Law and Law Fund Research Scholar, Boston College Law School
Most cases on the Supreme Court’s docket in any given year are not the likes of Windsor, Shelby County, or Fisher. Those get the headlines, of course, and rightly so. But most of of the Court’s caseload is dedicated to answering various arcane questions in eddies of the U.S. Code. By virtue of its position at the top of the judicial hierarchy, one of the Court’s primary jobs — still — is to be the final arbiter of these kinds of questions when the lower courts disagree. Only the most fastidious Court watchers pay much attention. (Back when I was clerking on the Court almost twenty years ago, I worked on a case that decided the statute of limitations for the Worker Adjustment and Retraining Notification Act. I’m shocked — shocked! — you don’t remember it.)
So looking over the January argument list, no one would blame you if, at first glance, you assumed Harris v. Quinn falls into this group. The question presented appears to be exceedingly narrow and specific — whether home health care workers in Illinois, paid for by Medicaid, are state employees. If they are, then a union representing state employees will be under a duty to bargain collectively on their behalf, and the workers will be required to pay their “fair share” of the costs of such union representation. The case arose when some health care workers covered by the collective bargaining agreement challenged the mandatory union fees as a violation of the First Amendment.
The Seventh Circuit decided the case in a terse, unanimous opinion. For nearly forty years, since Abood v. Detroit Board of Education, the law has been settled that public employees “may be compelled to support legitimate, non-ideological, union activities germane to collective-bargaining representation.” It is the quid pro quo of labor law: the unions are under a duty to represent all employees in the bargaining unit; in return, the employees are prohibited from free-riding.
Remember, back in junior high school, when you read that classic of American literature, “The Lottery” by Shirley Jackson? In the story, a small town ritualistically draws straws each summer to see who among them will be stoned to death, to ensure a good harvest later that fall. (Goes the local proverb, “lottery in June, corn be heavy soon!”) As the lottery begins, the townspeople gather in the public square and begin to collect rocks. The head of each family draws a slip of paper from the box, hoping not to see an inky black dot. The family that draws the black dot advances to the next round, in which one member is selected for sacrifice the same way. Tessie Hutchinson, a wife and mother of young children, draws the condemning dot, and the story ends as the terrified woman is stoned by her neighbors while she frantically protests.
Now, looking around your own world, does this dystopian game of chance seem at all familiar? Thankfully not, you are probably thinking – but if we’re really being honest, it should. On the anniversary of the soul-wrenching Newtown shootings, it’s time to concede that we, too, are participants in a lottery of our own making – one so horrifying that we mostly choose not to see it. But let’s face the grim reality. We are all living in that same nightmare town, where innocents are mindlessly sacrificed in service to ideals that don’t require this kind of sacrifice. When it comes to gun violence in America, we play the nightmare lottery every time we send our children off to school, each time we visit a public place, walk the streets, and in some cases, live in our homes.
A year ago this week, twenty-six first graders and their teachers were gunned down at the Sandy Hook elementary school in Newtown, Conn. Only days earlier, two people were killed and ten thousand terrorized by a gunman at a mall in Clackamas, Ore., where I live. A few months before that, a man walked into an Aurora, Colo., movie theater and opened fire on hundreds of people, shooting eighty-two and killing twelve. Just last week, hundreds of terrified teens were led out of a suburban Denver high school with hands on their heads after a fellow student shot two classmates and then killed himself while seeking revenge on a teacher. The mass shootings are particularly wrenching, but nearly 100 children under ten years old were killed by deliberate gunfire in 2012 alone, often by adults they knew.
Guttman heads Grant & Eisenhofer’s Washington, D.C. office and is also a member of the ACS Board of Directors. Guttman provides additional thoughts on the American justice system in an interview with ACSblog embedded below.
A few years back, a colleague from Beijing made his first journey to the United States to present a paper we wrote together for an academic conference in San Francisco. I frankly do not remember much about the paper or the conference – what I do remember is our lunch break. We took that time to walk over to San Francisco’s UC Hastings College of the Law Library. "What are all of these books?” my colleague asked me. I told him about the doctrine of stare decisis or adherence to precedent, how we publish judicial opinions, and the importance of those opinions to our common law tradition. He seemed a bit perplexed. I remembered that China has laws but no judicial precedent interpreting the laws or precedent establishing common law in the absence of statute.
It is, of course, such judicial precedent that creates expectations and obligations in our common law system. Guided by the doctrine of stare decisis, judicial authors including Learned Hand, Benjamin Cardozo, Roger Traynor, and others wrote opinions that used age-old logic to address the conflicts of their time. Their opinions did not change the law as much as they explained its application to newer problems. Writing an opinion, in some respects, is akin to a mathematician showing his work. The legal opinions essential to our common law tradition allow us to understand the answer, even if we do not agree with it. And, if the process leading to the answer is flawed, it is easier to spot the flaw and correct the result. Of course, through the doctrine of stare decisis, jurists make an art of reading the law and applying it to contemporary fact patterns. Emory Law Professor Frank Vandall’s book, A History of Civil Litigation: Political and Economic Perspectives (Oxford University Press: 2011), masterfully portrays the elegance of our common law tradition through a history of the evolution of products liability law.
To illustrate the importance of transparency, our next stop was the United States Federal Courthouse. "We have to make an appointment," my colleague told me, strongly hinting that we risked getting arrested. I told him that our court system is open for all to watch. Keeping the courts open, I explained, is integral to maintaining confidence in the results, even where people disagreed with the outcome. We visited the Clerk’s office where the person at the counter partially allayed my colleague's fears by saying, "Honey, you can look at any file you want." Next, we walked into a courtroom where there was a live trial. I vividly recall that convincing my colleague to enter the courtroom was about as difficult as giving our cat a bath.
“In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a ‘law respecting an establishment of religion’ that violates the First Amendment to the Constitution,” wrote Justice John Paul Stevens in City of Boerne v. Flores, the 1997 case that invalidated RFRA for state governments. RFRA still prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” Congress drafted RFRA to express its dissatisfaction with the Supreme Court’s important ruling in Employment Division v. Smith that all citizens must obey neutral laws. Smith rejected the argument that religious citizens are constitutionally entitled to disobey the law. In contrast, “RFRA establishes an across-the-board scheme that deliberately singles out religious practices, en masse, as a congressionally favored class of activity,” as Cardozo law professor Marci Hamilton argued in briefingBoerne.
Justice Stevens and Professor Hamilton were right. The most fundamental Establishment Clause rule is that the government may not prefer religion over irreligion or non-religion. RFRA, however, “privileges religion over all other expressions of conscience.” Unfortunately, in 1997 only Stevens and Hamilton recognized the establishment problems with RFRA, which continues to bind the federal government.
Those problems were confirmed by the Tenth Circuit’s decision in Hobby Lobby, which exempted the large arts and crafts chain store from the contraceptive mandate of the Affordable Care Act without mentioning the Establishment Clause. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Because Hobby Lobby’s Christian owners believe that contraception causes the death of a human embryo, they want to deny contraceptive insurance to their employees. The Tenth Circuit ruled that RFRA grants the employers that right.