The legislative prayer (perhaps a misnomer, if we go by the dissent) case was decided today and SCOTUS has a pretty good summary with a list of criteria regarding the updated "test" as submitted by the Kennedy Five. Spoke myself about the case in the past, including here.
The summary doesn't do much to discuss Kagan's excellent dissent (a blog post sympathetic to her side), which is unfortunate (the blog's summaries often don't focus too much on dissents, but it might have warranted a bit more discussion here). There were multiple opinions, but two main ones. Alito responded to the dissent, since Kennedy never does. Thomas/Scalia felt the controlling plurality asked too much in its in effect coercion test. Breyer joined the dissent but underlined that how his facts-laden Establishment Clause philosophy was violated here. My only mild surprise is that it was mostly a clean 5-4 ruling -- figured Breyer might concur or dissent on narrow grounds or something.
As he did with Blackmun's opinion in the Seattle case regarding the rules regarding the political process doctrine in the affirmative action case, Kennedy wore away some of the until today current (if doomed) law as applied by Blackmun in the creche case. The key issue here was the need for nonsectarian prayers, something Alito et. al. ridiculed during orals. Somehow, however, various legislatures and probably others do try to do that. Realistically, yes, prayer itself is sectarian. It's a matter of degree though. And, the facts here via the "reasonable observer" used by the plurality would show that the prayer regime here favored certain religions. As Kagan noted, it also as applied to the facts here, has a "coercive" effect. Anyway, the nonsectarian rule was not clearly expressed in the key precedent (Marsh v. Chambers), but it did note the prayers there were of that nature. The hand-wave done by the plurality here is a bit much.
And, at the end of the day, the overall concern about focusing on the content of prayers is required even by the majority today. Determining if the prayers "denigrate, proselytize" would at some point require looking at the content. The "tradition" honored by the plurality is that the prayers here promote "the idea that people of many faiths may be united in a community of tolerance and devotion." The dissent does a good job showing how that rule is violated here. As is often the case, the stereotypical godless left is the one the more fully honors religious belief and practice here, including honoring the separatists among us (a core group behind the relevant clause for those who care about original understanding).* Finally, the problem with the coercion test as applied here is that the Establishment Clause goes beyond "free exercise."
The dissent a fashion relied on this not really being a legislative prayer case at all. An important factor there is that internal legislative practices are a special case, not the same as an establishment that affects the public at large. As shown by the dissents in Marsh v. Chambers, and even with the limited barrier set up here (largely coercion over endorsement), it is not anything goes even there. The barrier to "religious tests" includes internal legislative action. Nonetheless, as noted here, we are not talking the usual legislative prayer situation in this case. The prayers here are much more a matter of the public at large. Again, the plurality simply did not honestly face up to this fact, particularly as applied to the facts in place here.
The case was a loser pretty obviously -- the 2nd Circuit applied endorsement test precedents with a specific concern to the effects of the practice in place. A full respect of religious diversity while still upholding the (honestly problematic) practice of legislative prayers (even applied to this context) would have upheld the lower court. But, Justice Kennedy wrote the dissent in the case where Marsh was applied this way and even when school children was involved, Kennedy wrote an opinion using the coercion test (Lee v. Weisman). He has repeatedly been concerned with leaving open religious expressions in public places. The situation here was just not blatant enough to get his vote to uphold the lower court.
As is getting to be her wont, Kagan provided a clear and powerful opinion providing an alternative voice. It also was more honest.
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* The plurality took a type of modified historical approach, citing those practices that have met the test of time, which helpfully explains (see also, e.g., Lawrence v. Texas) history alone should not be the judge. But, the dissent was able to use history for its own purposes, and this form of the test only helps it (both sides somewhat selectively use history, so history with an asterisk is basically an honest approach of what is going on). The dissent also uses a broad definition of "religion," to further a theme of mine:
The majority assumes a certain floor of inclusiveness that in effect establishes a certain brand of civic religion.
The summary doesn't do much to discuss Kagan's excellent dissent (a blog post sympathetic to her side), which is unfortunate (the blog's summaries often don't focus too much on dissents, but it might have warranted a bit more discussion here). There were multiple opinions, but two main ones. Alito responded to the dissent, since Kennedy never does. Thomas/Scalia felt the controlling plurality asked too much in its in effect coercion test. Breyer joined the dissent but underlined that how his facts-laden Establishment Clause philosophy was violated here. My only mild surprise is that it was mostly a clean 5-4 ruling -- figured Breyer might concur or dissent on narrow grounds or something.
As he did with Blackmun's opinion in the Seattle case regarding the rules regarding the political process doctrine in the affirmative action case, Kennedy wore away some of the until today current (if doomed) law as applied by Blackmun in the creche case. The key issue here was the need for nonsectarian prayers, something Alito et. al. ridiculed during orals. Somehow, however, various legislatures and probably others do try to do that. Realistically, yes, prayer itself is sectarian. It's a matter of degree though. And, the facts here via the "reasonable observer" used by the plurality would show that the prayer regime here favored certain religions. As Kagan noted, it also as applied to the facts here, has a "coercive" effect. Anyway, the nonsectarian rule was not clearly expressed in the key precedent (Marsh v. Chambers), but it did note the prayers there were of that nature. The hand-wave done by the plurality here is a bit much.
And, at the end of the day, the overall concern about focusing on the content of prayers is required even by the majority today. Determining if the prayers "denigrate, proselytize" would at some point require looking at the content. The "tradition" honored by the plurality is that the prayers here promote "the idea that people of many faiths may be united in a community of tolerance and devotion." The dissent does a good job showing how that rule is violated here. As is often the case, the stereotypical godless left is the one the more fully honors religious belief and practice here, including honoring the separatists among us (a core group behind the relevant clause for those who care about original understanding).* Finally, the problem with the coercion test as applied here is that the Establishment Clause goes beyond "free exercise."
The dissent a fashion relied on this not really being a legislative prayer case at all. An important factor there is that internal legislative practices are a special case, not the same as an establishment that affects the public at large. As shown by the dissents in Marsh v. Chambers, and even with the limited barrier set up here (largely coercion over endorsement), it is not anything goes even there. The barrier to "religious tests" includes internal legislative action. Nonetheless, as noted here, we are not talking the usual legislative prayer situation in this case. The prayers here are much more a matter of the public at large. Again, the plurality simply did not honestly face up to this fact, particularly as applied to the facts in place here.
The case was a loser pretty obviously -- the 2nd Circuit applied endorsement test precedents with a specific concern to the effects of the practice in place. A full respect of religious diversity while still upholding the (honestly problematic) practice of legislative prayers (even applied to this context) would have upheld the lower court. But, Justice Kennedy wrote the dissent in the case where Marsh was applied this way and even when school children was involved, Kennedy wrote an opinion using the coercion test (Lee v. Weisman). He has repeatedly been concerned with leaving open religious expressions in public places. The situation here was just not blatant enough to get his vote to uphold the lower court.
As is getting to be her wont, Kagan provided a clear and powerful opinion providing an alternative voice. It also was more honest.
---
* The plurality took a type of modified historical approach, citing those practices that have met the test of time, which helpfully explains (see also, e.g., Lawrence v. Texas) history alone should not be the judge. But, the dissent was able to use history for its own purposes, and this form of the test only helps it (both sides somewhat selectively use history, so history with an asterisk is basically an honest approach of what is going on). The dissent also uses a broad definition of "religion," to further a theme of mine:
These are statements of profound belief and deep meaning, subscribed to by many, denied by some. They "speak of the depths of [one's] life, of the source of [one's] being, of [one's] ultimate concern, of what [one] take[s] seriously without any reservation." P. Tillich, The Shaking of the Foundations 57 (1948).To add to this footnote, Dahlia Lithwick (kinda "spicy" to quote Justice Ginsburg) does a good job here showing the problematic de facto establishment of Kennedy/Alito honoring some general civic religion that turns out to lean a certain way. Cf. repeated cases of disparagement in the very holy books of the religions honored here. The problem was flagged in the oral arguments, e.g., of an early case regarding a law requiring reading aloud a few biblical verses every school day.
The majority assumes a certain floor of inclusiveness that in effect establishes a certain brand of civic religion.
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