Overturn WallaceBy Edward H. Stewart, Jr.
Town of Greece v. Galloway can make the Supreme Court's highlight reel by setting right 25 years of bad law. Conservatives are spoiling for a fight because the 2nd Circuit's opinion is a direct attack on the longstanding American tradition of opening public meetings with an invocation or prayer, and by implication on religious speech itself. 26 amicus briefs have been filed in support of the appeal by, among others, Solicitor General Verrilli, 85 members of the House of Representatives, and 34 senators.
There's good reason for the uproar. Town of Greece is just the latest outrage in the corrupt tradition of Wallace v. Jaffree, the 1985 school prayer opinion whose progeny include McCreary v. Kentucky ACLU, which evicted a display of the Ten Commandments from a courthouse hallway, and the infamous 9th Circuit pledge case.
What drives Town of Greece is a notion of "affiliation" that is not objectively defined. It is almost certainly code for Jefferson's "wall of separation" or William Brennan's favorite, "proximity." It apparently does not require intent to harm or hard evidence of injury. Instead, the court relies on "contextual considerations" that, taken "in concert," lead to the conclusion that "an objective, reasonable person would believe that the town's prayer practice had the effect of affiliating the town with Christianity," making non-Christians feel like "outsiders."
This approach makes sense, we're told, because
Really? A court ignores the Constitution to "restrict" itself, not free itself from a standard it finds too confining? Apparently so. What counts is a perception of affiliation, which sounds suspiciously like the judge has his thumb on the scale. But not to worry, this perception of an abstraction is fair because the court is not "adopting a test that permits prayers in theory but makes it impossible for a town in practice to avoid Establishment Clause problems."
Baloney. Town of Greece avoids citing a constitutional standard that could guide policy and repeatedly warns that no such standard is likely to work. Then it amps up the uncertainty by asserting its ability to perceive a "message" that's sent not by the government's actions, or their purpose, but by "various circumstances" some of which may be beyond the government's control. The message this sends to governments everywhere is clear:
Marci Hamilton of the Cardozo School of Law had no problem decoding it:
The Christians got what they deserved. An open and shut case to an academic left that indulges itself by misrepresenting precedent and ignoring reality. Wallace is a major source of these errors, so it's time to figure out why it's such a lemon.
First, we need the Lemon test:
And the statute Wallace struck down:
There's a secular purpose because "in all grades" replaced grades 1-6 in a predecessor law. There's no "packaged" moment of "meditation and prayer," but the offer of a private, personal choice. The law even forbids "other activities" such as teacher-led prayer. Effect? Ishmael Jaffree admitted in an interview he was not offended or harmed by this moment of silence.
So, how did John Paul Stevens strike down this law with Lemon's purpose prong?
For starters, Stevens took an as-applied detour from his facial challenge to ditch the secular purpose: Jaffree's kids weren't in grades 7-12, so that change didn't reach them. Cute. Then he cooked up an "actual" purpose to endorse religion based on just three of the law's 64 words: "or voluntary prayer." That took the law's effect off the table, because a purpose to endorse religion made it "unnecessary, and indeed inappropriate, to evaluate the practical significanceof the addition of the words 'or voluntary prayer' to the statute."
That's having your cake and eating it, too. Or ignoring reality. It sounds a lot like the perception of an abstraction in Town of Greece because that's just how the endorsement test works.
So what to do? Articles like David Skeel's "The Supreme Court Revisits a Religious Lemon" take us down the wrong path. The big story isn't that Wallace applied Lemon and got it wrong; it's that Wallace trashed nearly 40 years of liberal precedent and compromised the integrity of the court by sneaking in the endorsement test.
Buried in Wallace's footnotes is O'Connor's rewrite of the Lemon purpose and effect prongs:
That's the test Stevens used. And in almost no time Brennan was touting Wallace's revolutionary "teaching" in Edwards v. Aguillard:
Even the "enlightened" meaning of just three words lifted out of context.
Alfred Goodwin went a step farther in his opinion for the 9th Circuit in the pledge case: "Justice O'Connor's 'endorsement' test effectively collapsed the first two prongs of the Lemon test." Not fine-tuned, as Stevens suggested; "collapsed."
"Collapsed" says it all. With its first two prongs' collapsed Lemon's call for a secular purpose and a secular primary effect is history, and the venerable Warren court standard is dead.
What emerges from Lemon's collapse is an entanglement prong on steroids, a bulked-up version of a test whose only logical purpose was to strike down laws we know are "neutral" toward religion because they pass the purpose and effect tests. The endorsement test doesn't strike down laws because they "establish" religion in any practical sense but because they send a message of "endorsement" or "affiliation" by bringing religion into proximity with government.
This anti-neutrality is at the heart of the endorsement test, and jumping into bed with it repudiates the entire body of precedent built on the Neutrality Doctrine. The endorsement test marginalizes neutrality for the same reason the 2nd Circuit marginalizes the establishment clause: so that the court can "restrict" itself to putting limits on "government's license to promote the free exercise of religion."
That's why the academic left thinks Wallace is the voice of doom. When a court cooks up an "actual" purpose or perceives a "message of affiliation" it has "restricted" itself from Warren court precedent and embraced Rules for Radicals. The endorsement test sets no standards and defines no constitutional boundaries. It requires nothing of a plaintiff beyond narcissism or anti-Christian bigotry. It asks the government to prove a negative, then accuses it of lying if it tries. It creates uncertainty by lack of clarity to enforce conformity. It is the establishment clause ultimate weapon, and it was clearly triggered in Town of Greece.
It should never be used again. 2013 marks the 50th anniversary of Arthur Goldberg's oft-quoted warning that "untutored" neutrality could give rise to "a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious." That it certainly has.
Not so often quoted is Goldberg's advice for avoiding that result: respect the role of religion in American history, government, and values; remain faithful to the First Amendment; and apply standards that provide a "realistic measure" of the "meaningful and practical impact" of government actions. For Goldberg, "the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow."
That's a lesson the Supreme Court should reteach without delay.
Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback at firstname.lastname@example.org.
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