On Town of Greece, NY v. Galloway et al.

As with many of the other U.S. Supreme Court decisions on which I have commented in this blog, this case raises divergent concerns, related, on the one hand, to the liberal, secular protections extended through the U.S. Constitution and, on the other hand, to localized democratic practices.  The case itself (see "Town of Greece, NY v. Galloway et al.," no. 12-696, October Term, 2013, at: http://www.supremecourt.gov/opinions/13pdf/12-696_4f57.pdf) involves a challenge under the First Amendment "Establishment clause" (i.e. "Congress shall make no law respecting the establishment of religion") by two residents of the town of Greece, New York, who objected to the particular nature of prayers offered prior to town board meetings from 1999 to 2010.  Until the respondent's directly approached the municipality in 2008 to complain about the practice, these prayers were explicitly and solely Christian in nature.  The respondents argued, on the contrary, that invocations before town board meetings should be non-sectarian, "inclusive and ecumenical," reflecting the larger diversity of the community.  In response to initial complaints, municipal officials made jestures in 2008 to include non-Christian invocations, including prayers offered by Jewish, Baha'i, and Wiccan followers.  It then, apparently, resumed the practice of only inviting Christian clergy to give invocations. 
           In first hearing about this opinion and reading criticisms made in various contexts, I will concede that my first inclination was that the Court majority, represented through Justice Kennedy's opinion, issued a ruling wholly consistent with my understandings of First Amendment protections against the establishment of religion.  To some extent, after giving a cursory reading of Justice Kennedy's majority opinion and the dissents by Justices Breyer and Kagan, I continue to hold this view, but with certain reservations.  Notably, Justice Kennedy appears to rest his defense of the practice of Christian invocations in Greece on the grounds that such invocations do not imply coercion.  The respondents were at liberty not to participate in prayers that did not conform to their personal beliefs.  As such, the majority opinion holds that the Establishment clause does not protect citizens from merely feeling offended or otherwise exluded by particular sectarian invocations.  To the contrary, Justice Kagan's dissent makes a persuasive case that it is precisely within the participatory democratic framework of local/municipal government that officials owe some greater degree of responsibility to ensure that citizens can legitmately feel included as coequal members within a diverse community within which residents practice multiple faiths.  In this respect, some greater effort should have been made by the town of Greece to actively solicit the offering of invocations by members of alternative, minority faith traditions, a responsibility in which, the evidence seems to show, municipal officials failed. 
           My own feelings on this case demonstrate my tendency to embody views on federalism and on the centrality of democratic practices over judicial discretion in defining Constitutional requirements that are simply not consonant with the perspectives of either side in this decision.  That is to say, I question the entire logic of partial incorporation of Bill of Rights protections against state, county, and municipal government practices as a matter inconsistent with Constitutional practice, the textual requirements of the Fourteenth Amendment on states notwithstanding.  Further, even to the extent that there may be some legitimacy in the incorporation of First Amendment protections against actions by states, counties, and municipalities, I privilege democratic practices by general purpose (state, county, and municipal) governments above the particular Constitutional restrictions on governmental practices at least insofar as such practices do not, on their face, expressly challenge particular Constitutional provisions.  The Establishment clause, as an area in Constitutional jurisprudence, has proven too open to interpretation to define any explicit boundaries on what a state or local government can do short of explicitly coercing citizens to undertake specific religious practices as a condition of enjoying the privileges of citizenship.
           With these principles in mind, I really cannot disagree with Justice Kennedy's majority opinion - the respondents were never explicitly forced to sit down and offer Christian prayers as a condition of being heard as citizens in a local governmental hearing.  On the other hand, the arguments issued in Justice Kagan's dissent raise noteworthy questions about when meaningful participation within participatory democratic practices at a local level may be hindered by discriminatory jestures.  Clearly, municipal officials in the town of Greece seem to have gone out of their way to make it clear that Christian citizens were the only citizens whose opinions really mattered to them in the exercise of local government.  If the local democratic practices of a municipal government exude participatory openness in form but the substance of such practices exudes a sense of exclusion toward certain classes of citizens, then do we really have a robust and inclusive democracy?  My own feeling, in this regard, is that, having failed to secure the ends that they had sought through the Federal judiciary, the respondents should take their case to their fellow citizens in Greece.  They should state emphatically that the practices of the municipal government are innately discriminatory, notwithstanding the five-to-four majority opinion of a split Court, and they should build the necessary democratic coalition to see to it that the practice is ended once and for all.  If they succeed in doing so, then democracy will enjoy its day of victory over sectarian prejudice.