Undermining the Patriarchy Every Chance I Get. And I Get a Lot of Chances
Town of Greece
In the book The Paper Chase, there's a scene where the young law student gets an extra assignment from his demanding law professor -- a chance to really show what he can do. The student gets behind, the project takes longer than he thought, other work interferes, but the whole time he keeps telling himself that he'll just do such a big, bang-up, thorough and more-than-thorough job that it will still impress his professor, even though it's late. When he finally confesses what's happened, the professor brushes it off and says that when it was clear the student couldn't handle it, he gave the job to someone else. Which, in law school, is, you know, really, really, really not good.
I've never forgotten that scene and it's sometimes shown up unpleasantly in my dreams.
Which is a long way to say that I pulled up today's SCOTUS decision, Town of Greece v. Galloway, in which the Court reversed the Court of Appeals, which had held that sectarian prayer at a town meeting violated the Establishment Clause of the First Amendment. ("Congress shall make no law respecting an establishment of religion. . . ."). Here's how SCOTUSBLOG describes the decision:
"Judgment: Reversed, 5-4, in an opinion by Justice Kennedy on May 5, 2014. Justice Scalia and Justice Thomas join the majority opinion except as to Part II-B. Justice Alito filed a concurring opinion, in which Justice Scalia joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Scalia joined as to Part II. Justice Breyer filed a dissenting opinion. Justice Kagan filed a dissenting opinion, in which Justice Ginsburg, Justice Breyer, and Justice Sotomayor joined."
Which was about the point when I caught myself figuring that it would be better to read the whole thing carefully, compare and contrast it with recent SCOTUS cases holding that, for example, a cross can be a "secular" symbol at a war memorial, and to do a really, thorough, careful post this weekend. You know, like in The Paper Chase.
And I may, yet, but here are a few first impressions:
The case is bad news for minority religions and those who believe in separation of church and state. Further, SCOTUS knows that Congress is very unlikely to override this sort of decision legislatively; who wants to introduce "the bill against prayer"?? So we're stuck with it.
Second, my very quick first reading indicates that the intent of the town may matter, i.e., if the town didn't intend to discriminate, proselytize, or make others uncomfortable, everything's ok. The Syllabus explains that:
"Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation. See 463 U. S., at 794–795. Finally, 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. Pp. 9–1."
Good luck proving intent.
Third, my, again very quick, read is that there's no reason why this logic can't be applied to, for example, schools. We'll have to wait for that case, but that's the step-by-step process in which the conservative members of the Court are engaged.
Fourth, the only logical thing I can see to do in response is for Pagans and other members of minority and disfavored religions to begin showing up, volunteering to offer the public prayers, and making a record of the times that they are turned down. A town or other government body doesn't have to search beyond its borders for non-Christian prayer-givers, but a pattern of turning such people away might convince a court that, even under the Town of Greece standard, there's an Establishment Clause violation.
Whole lot of Catholic Justices. Not a single Pagan, Hindu, Atheist, Muslim, . . . .
* All of the usual disclaimers apply. I'm not providing legal advice and I am not creating a lawyer-client relationship with anyone via this post. The views expressed are solely those of Hecate Demetersdatter and do not reflect the views of any other person or entity.
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