A Dose of SCOTUS Holiday Cheer: Oral Argument Annotated—Part II

In Dose 1 of our SCOTUS holiday cheer, we learned that “Greece” is not only a bankrupt country that is the bane of Germany’s existence, but also a small town in New York struggling with a big time problem. The town of Greece begins council meetings with Christian prayers, which bothers at least a couple of the non-Christian citizens. The non-Christians’ attorney, Mr. Laycock, is trying to convince SCOTUS that the town should have to tell the members of the clergy who conduct the prayers to limit them to content that is generally acceptable to most people. Let’s pick up the transcript where we left off.

JUSTICE SCALIA: Your point is that it coerces, it’s bad because it coerces?

It’s a trap!

MR. LAYCOCK: It coerces the people who are about to stand up and ask for things from the board and -­

Never let Scalia put words into your mouth if you know he disagrees with you. This is trouble.

JUSTICE SCALIA: If coercion is the test of the Establishment Clause, why do we need a Free Exercise Clause? If there’s coercion, I assume it would violate the Free Exercise Clause, wouldn’t it?

MR. LAYCOCK: Well, I think that’s right. And that’s why -­

Backtracking…

JUSTICE SCALIA: So it seems to me very unlikely that the test for the Establishment Clause is identical to the test for the Free Exercise Clause.

MR. LAYCOCK: Well, it seems to me unlikely as well.

Backtracking…

MR. LAYCOCK: Coercion is one test for the Establishment Clause, but there is also broad agreement on the Court, and there has been, that sectarian endorsements are prohibited by the Establishment Clause.

Sooooo, we’re not talking about coercion then?

CHIEF JUSTICE ROBERTS: Since you are adopting the coercion test, what exactly is coercive in this environment? Having to sit and listen to the prayer?

Hang on. Did we resolve Scalia’s question? It sounds right that coercion shouldn’t be the test under both the Establishment Clause and the Free Exercise Clause. Otherwise, one would be superfluous. So, if this is an Establishment Clause case and coercion is more of a Free Exercise issue, why are we still talking about coercion?

MR. LAYCOCK: There are many coercive aspects here of varying degrees of importance. Citizens are asked to participate, to join in the prayer. They’re often asked to -­

CHIEF JUSTICE ROBERTS: They are asked to participate, but not in any tangible way. They say: Well, I’m not going to participate, and everybody’s just sitting there.

MR. LAYCOCK: They are often asked to physically participate, to stand or to bow their heads. The testimony is most of the citizens bow their heads whether they are asked to or not. So people who are not participating are immediately visible. The pastors typically say: “Please join me in prayer.” They offer the prayer on behalf of everyone there. They talk about “our Christian faith.”

JUSTICE SCALIA: This is coercion? He says, “May we pray,” and somebody doesn’t want to pray, so he stays seated.

Why are the conservative Justices so surprised that these legislative prayers could be perceived as coercive? It seems to me that Mr. Laycock has the better argument in this portion of the transcript. This argument is a shining example of why it is not ideal for relatively homogeneous groups of people to make important decisions.  Justice Scalia, a white, Christian man may find himself in a position where he feels like a minority being subjected to the views of the majority on occasion, but it probably isn’t that frequent. Those types of experiences, or at least familiarity with a paradigm of being marginalized, would provide a Justice invaluable perspective on an issue like this one.

MR. LAYCOCK: What’s coercive about it is it is impossible not to participate without attracting attention to yourself, and moments later you stand up to ask for a group home for your Down syndrome child or for continued use of the public access channel or whatever your petition is, having just, so far as you can tell, irritated the people that you were trying to persuade.

Speaking of irritating the people you are trying to persuade, who wants to guess the religious make-up of the Supreme Court? There are nine Justices. What do you think the religious distribution is? I’ll give you a jump to think about it.

Six Justices are Roman Catholic and three are Jewish![1] Together, Catholics and Jews make up only 25.6% of the US population.[2] So, the religious identity of a whopping ¾ of Americans is unrepresented on the Supreme Court. It is also notable that of the five Justices who have asked questions of Mr. Laycock so far, all five have been Catholic. Anybody have a good Inquisition joke you’ve been holding onto for the past 500 years?

JUSTICE ALITO: Let me give you an example of a practice that’s a little bit different. Maybe you’ll say it’s a lot different from what the Town of Greece does. First of all, this town starts out by proceeding in a more systematic and comprehensive way in recruiting chaplains for the month or whatever it is. So instead of just looking to all the houses of worship within the town, it identifies places of worship that may be outside the town boundaries that people within the town who adhere to a minority religion may attend. And it makes it clear that it’s open to chaplains of any religion on a rotating basis. And then they structure their proceedings so that you have the prayer, and then the legislative part of the town meeting. And then there’s a clear separation in time and access between that part of the proceeding and the hearing where variances and things of that nature are held…

… and then everyone at the meeting counts off exactly five minutes between the conclusion of the prayer and the start of the meeting… and then a man at the meeting says to a woman, “gee, that sure was a clear separation in time…”

JUSTICE ALITO: Now, you would still say that’s unconstitutional because you have to add on that a prayer that is acceptable to everybody; is that it? Is there any other problem with what I’ve just outlined?

MR. LAYCOCK: Well, if the separation in time really works, that’s part of the remedy that we’ve suggested that is possible here. We still believe that prayers should be nonsectarian.

JUSTICE GINSBURG: You say the existing situation violates the Constitution. So what changes do you think would need to be made that would bring this within the constitutional boundary?

MR. LAYCOCK: We think the town needs a policy. The policy should give guidelines to chaplains that say: Stay away from points in which believers are known to disagree. And we think the town should do what it can to ameliorate coercion. It should tell the clergy: Don’t ask people to physically participate. That’s the most important thing. The government suggests disclaimers might help. We think that’s right. The government suggests separating the prayer a bit more in time. Some states put their prayer before the call to order. The prayer could even be five minutes before the beginning of the meeting. The coercion can’t be entirely eliminated, but the gratuitous coercion, the things that are done that don’t have to be done in order to have a prayer could be eliminated. And we think those two pieces are the components of a remedy.

That’s an awfully specific line for the Constitution to require. In order for a town to have a prayer but avoid violating the Establishment Clause, the prayer can only offend certain people, and people can’t be asked to stand or bow their heads? As a general rule, the Constitution establishes broad requirements. It is a bit strange to interpret the broad requirements of the First Amendment in such a way so as to create such a fine line. When advocating for that sort of interpretation, a lawyer has to explain why, for example, one religious group is protected but another is not. And that explanation has to be rooted in the First Amendment itself. Otherwise, you just have judges including and excluding groups based on the judges’ own beliefs. It seems to me that it would make more sense if the Establishment Clause were to either permit or ban legislative prayer, one way or the other.

JUSTICE SCALIA: Mr. Laycock, it seems to me that what you’re missing here is — and this is what distinguishes legislative prayer from other kinds — the people who are on the town board or the representatives who are in Congress, they’re citizens. They are there as citizens. The judges here are not — we’re not here as citizens. And as citizens, they bring to their job all of the predispositions that citizens have. And these people perhaps invoke the deity at meals. They should not be able to invoke it before they undertake a serious governmental task such as enacting laws or ordinances? There is a serious religious interest on the other side of this thing that people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens, and not as judges or as experts in the executive branch. And it seems to me that when they do that, so long as all groups are allowed to be in, it seems to me an imposition upon them to stifle the manner in which they invoke their deity.

This is why I have called Scalia the intellectual leader of the conservative Justices, and the Lebron James of the Supreme Court. Whereas Alito has spent about a dozen questions in a scintillating, yet unsatisfying effort to get Mr. Laycock to say a prayer that appeals to Christians, Wiccans and Baha’is at the same time, Scalia develops a coherent and thought-provoking argument for why a conservative would really be inclined to believe that legislative prayer does not violate the Constitution: because banning legislative prayer might violate the religious rights of the members of the government.

MR. LAYCOCK: We haven’t said they can’t invoke the deity or have a prayer, and they can certainly pray any way they want silently or just before the meeting. We’ve said they cannot impose sectarian prayer on the citizenry, and that is very different from what Congress does, it is very different from what this Court does. Maybe the closest analogy is legislative committee hearings where the citizens interact. We don’t have a tradition of prayer there. What the town board is doing here is very different from anything in the tradition that they appeal to.

Yet, Mr. Laycock has an excellent response to Scalia’s question. Limiting or banning legislative prayer wouldn’t infringe on the rights of the members of government because those individuals can pray however they would like any time they choose (including right before the meeting), just not during a governmental function when citizens are essentially compelled to attend because doing so leads towards an establishment of religion.

JUSTICE BREYER: I would like you to take into account an aspect of this. I mean, in my own opinion, I don’t know of anyone else’s, I’m not talking for others. But a major purpose of the religion clauses is to allow people in this country of different religions, including those of no religion, to live harmoniously together.

And then there’s Breyer, the yin to Scalia’s yang. Breyer is apparently on a life-long mission to personify every possible liberal stereotype. Today’s manifestation of this motif: the good ol’ “why can’t we all just live harmoniously together” stereotype.

JUSTICE BREYER: Now, given that basic purpose, what do we do about the problem of prayer in these kinds of legislative sessions? One possibility is say, you just can’t do it; it’s secular. But that is not our tradition.

MR. LAYCOCK: That’s correct.

JUSTICE BREYER: All right. The second possibility is the one that you are advocating. And it has much to recommend it, try to keep non-denominational, try to keep it as inoffensive to the others as possible. That’s the upside. The downside is seeing a judge supervising dozens of groups, and today, there are 60 or 70 groups of different religions coming in and saying, no, that doesn’t work for us, this doesn’t work for us, and that’s the nightmare that they are afraid of. I mean, even in this town or in the area, there are significant numbers, as well as Christians, of Jews, of Muslims, of Baha’is, of Hindus, and others. All right. So there’s a third approach, and that is say, well, you can’t have them if there’s any aspect of coercion. But we just saw people walking into this room, “God save the United States” and you want to win your case. I didn’t see people sitting down. All right. Then the fourth approach, which is the other that makes its appearance here, is to say let’s try to be inclusive. Now, so you didn’t get the right prayer today, but you — and even with the nonreligious, you know many believe in the better angels of our nature and the spiritual side of humankind; it’s not impossible to appeal to them. So you say, you’ll have your chance. And that’s the thing I would like you to explore. I mean, is there a way of doing that or is that preferable to the other ways or do we get into trouble?

MR. LAYCOCK: We think that rotation does not work for several reasons. First of all, most citizens come for a single issue to one or two meetings. They get the prayer they get that night. They don’t benefit from the rotation scheme. Any rotation scheme will be dominated by the local majority, maybe even disproportionate to its numbers. When unfamiliar religious minorities give the prayer, there are often political protests; there are often threats and hate mail. They don’t want to give the prayer. And many city councils won’t stand up to the political pressure and enable those people to give the prayer. So there are multiple reasons why rotation does not solve the problem here. We think nonsectarianism has a very long tradition. “The government is not a competent judge of religious truth,” Madison said, that was not a controversial proposition in the founding. And even in the first Congress, in the prayers they point to, there were no prayers there that violate our principle, invoking details in which believers disagree. Because then, 98½ percent of the population was Protestant, Christ was not yet a point that disbelievers disagreed.

JUSTICE ALITO: Well, that gets exactly to the problem with your argument about nonsectarian prayer. Yes, at the beginning of the country, the population was 98 percent-plus Protestant. Then it became predominantly Christian. Then it became almost exclusively Christian and Jewish. But now, it’s not that, it’s gone much further than that. So we have a very religiously diverse country. There are a lot of Muslims, there are a lot of Hindus, there are Buddhists, there are Baha’is, there are all sorts of other adherents to all sorts of other religions. And they all should be treated equally, but I just don’t see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups.

MR. LAYCOCK: We -­

JUSTICE ALITO: And you haven’t given me an example.

MR. LAYCOCK: I’m not a pastor — we cannot treat everybody, literally everybody equally without eliminating prayer altogether. We can treat the great majority of the people equally with the tradition of prayer to the almighty, the governor of the universe, the creator of the world.

It seems to me that SCOTUS can’t really treat the great majority equally in this context. Perhaps the solution is to eliminate legislative prayer altogether. The best argument to the contrary seems to be that the drafters of the Constitution approved of legislative prayer. But they also generally approved of slavery, which violated the Due Process Clause of the 5th Amendment (at least our current conception of that clause). Many of the Framers also voted for the Alien and Sedition Acts, which pretty clearly violated several constitutional provisions, including the First Amendment. So, the Framers did not always act consistently with the provisions of the Constitution that they drafted. Why, then, is the “tradition of legislative prayer” such a powerful argument in favor of its constitutionality?

We’ll see if Mr. Laycock can answer that question and more when we return for the thrilling conclusion of our holiday SCOTUS transcript extravaganza. Here is Part 3.

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2 Responses to A Dose of SCOTUS Holiday Cheer: Oral Argument Annotated—Part II

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