Having finally found time to read all of the concurring and dissenting opinions in the Supreme Court’s decision in Town of Greece v. Galloway, I came away disappointed, surprised and more than a little worried.
My disappointment is grounded not only in the Court’s approval of sectarian invocations at town council meetings, which was not a surprise, but also in the flimsy reasoning underlying Justice Kennedy’s majority opinion. Like former Chief Justice Berger’s 1983 opinion for the Court upholding the practice of having prayers offered in state legislatures by chaplains paid from the public purse (Marsh v. Chambers, 463 U. S. 783), Justice Kennedy’s opinion for the majority in Town of Greece is predicated on historic tradition and practice and on the dubious proposition that the invocations are offered primarily for “ceremonial,” rather than religious, purposes. “Marsh,” said Justice Kennedy, “stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.”
“The tradition reflected in Marsh, he wrote, “permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths. That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition.”
I yield to no one in my respect for tradition and history, but I simply don’t think “we’ve always done it that way” and “it’s no big deal” are sufficient underpinnings for an important First Amendment decision.
I’m also disappointed that Justice Kennedy, who has both the demeanor and the reputation of a really nice fellow, seemingly has no real understanding of or empathy with Muslims, Jews, Hindus and non-religious citizens whose elected officials subject them to overtly or even aggressively Christian prayers whenever they attend town council meetings. He wrote that citizens who “feel excluded or disrespected” by sectarian invocations should simply ignore them. “Adults often encounter speech they find disagreeable,” he said.
Justice Kennedy’s insensitivity on this point makes me wonder whether he has ever had a meaningful personal conversation with Justice Elena Kagan, whose eloquent dissent clearly expresses the dismay and sense of ostracism experienced by Jewish and other non-Christian citizens when public business inevitably begins with an overtly Christian invocation. Justice Kennedy’s obtuseness pales, however, in comparison with Justice Alito’s blithe dismissal of minority’s objections as “niggling.”
If the result in the Town of Greece case was not surprising, Justice Clarence Thomas’s dissent was. In a radical deviation from mainstream Constitutional jurisprudence, he posited that the Establishment Clause was not made binding on state and local governments via the Fourteenth Amendment, and thus that the First Amendment does not prevent the town from establishing whatever official religion its elected officials choose. To their credit, none of Justice Thomas’s colleagues joined in support of this notion, but his raising of it also raises a question: Did the plaintiffs consider challenging the town’s prayer practices on grounds that they violated the Constitution of the State of New York, which dismantled all religious establishments in 1777?
The most worrisome part about the Town of Greece opinion is its naïveté. Justice Kennedy has degrees from Stanford, the London School of Economics and the Harvard Law School, but he presumably has not had much experience sitting in on meetings of town or county boards or councils – particularly in rural America or the Bible Belt. If he had, he would have known that not every elected local official will take to heart his admonition that legislative invocations will be deemed constitutional only so long as they are “brief, solemn and respectful” and do not cross over into coercion or intimidation. Rather, a few fervent religious zealots who won’t bother to read the Court’s opinion nevertheless will take it as a blanket endorsement of their own intolerant views. Indeed, we need look no farther away than Roanoke, Virginia, where a member of the county’s board of supervisors already has announced that in light of the Court’s decision his board should adopt a policy authorizing only Christian invocations at its meetings.
I predict, sorrowfully but confidently, that in short order many more such policies will be proposed, and that some of them will be adopted. If so, Justice Kennedy and his majority colleagues will discover that in attempting to put “ceremonial” legislative prayer in its own Constitutional box they instead have opened a Pandora’s box from which will emerge many frightening and divisive Establishment Clause issues.
Now that the primary election is over, the putatively nonpartisan election for the North Carolina Supreme Court seat currently held by Justice Robin Hudson is, in reality, a head-to-head contest between Justice Hudson, a Democrat, and Superior Court Judge Eric Levinson, a Republican.
Gone from the airways, at least for now, is the despicable and scurrilous television ad that maliciously and falsely attacked Justice Hudson as “not tough on child molesters.” The ad cited a 2010 decision in which the court’s seven members split, 4-3, over the constitutionality of a state law that required convicted sex offenders to undergo satellite-based monitoring, or “SBM,” 24-7, even if their offenses had been committed before the law was passed and they had completed their penal and probationary sentences. The only issue in the case was whether the monitoring – which significantly restricted the travel and activities of those who were subject to it – was a form of “punishment.” If so, its retroactive application ran afoul of the U.S. and North Carolina constitutions, both of which prohibit the ex post facto application of criminal laws.
The issue was both an important constitutional question and a close call. Courts in other states had gone both ways. The applicable facts raised thorny issues about which reasonable people clearly could differ. (For example, one question addressed by the court arose out of the fact that the SBM equipment prevented anyone being monitored from taking a commercial airline flight. Is this deprivation a form of “punishment?”)
In an opinion written by Justice Dan Brady and concurred in by Justices Mark Martin, Bob Edmunds and Paul Newby, the majority explained in detail why they felt that SBM was not punitive. Justice Hudson, in an opinion joined by Chief Justice Sarah Parker and Justice Patricia Timmons-Goodson, explained just as fully why they thought otherwise. Both Justice Brady and Justice Hudson argued passionately for their respective views of the constitutional issue, but neither had a kind word for child molesters or sex offenders. Moreover, since the record pretty clearly showed that the monitoring was a huge nuisance both for those being monitored and those doing the monitoring, and was not really effective as a crime prevention measure, the outcome of the case appears at the end of the day to have been largely symbolic.
Now the question is whether this tempest in a legal teapot will continue defile and define what should be a campaign between two principled people. I know and respect both Justice Hudson and Judge Levinson. Either is well qualified to sit on the North Carolina Supreme Court. But the onus in this race, like it or not, now falls on the latter. Will Judge Levinson disavow and repudiate the shabby and underhanded tactics of the big-money crowd that paid for the “not tough on child molesters” ad? If so, he is worthy of the voters’ consideration in November. Otherwise, he isn’t.