More on the Town of Greece v Galloway decision

May 5, 2014 • 10:14 am

If you want a quick-and-dirty, but informative, take on this morning’s execrable 5-4 Supreme Court decision allowing municipal prayers in Greece, New York, read the analysis at Religion Clause, a site devoted to church-state issues. It breaks down the justices’ decisions (there was a lot of dissent, even among the majority), while avoiding editorializing. We can do that later. (I haven’t yet read the decisions and dissents.)

The most frightening thing on there, though, was this (my emphasis):

An opinion by Justice Thomas, joined by Justice Scalia, explained their refusal to join Part II-B of Justice Kennedy’s opinion. They argued that the Establishment Clause should not be seen as being applicable to the states.

Do we need to remind Scalia, who is an “originalist” (i.e., one who adheres to what he sees as the original intent of the U.S. Constitution’s writers), what the Establishment Clause is? It’s at the beginning of the First Amendment to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Under what interpretation is that not applicable to the states? Are Scalia and Thomas saying that although Congress can’t have make an established religion, or prohibit exercise of some religions, or prohibit freedom of the press, the states can? 
That’s insane. I look forward to reading their opinions; this is going to be juicy.
h/t: Amy


49 thoughts on “More on the Town of Greece v Galloway decision

    1. Ha ha! Who needs big government protecting rights & such when I side arm will do!

        1. Aw, how nice. 🙂

          I do the exact same thing; rail about gender bias, then find myself committing it. Just shows how pervasive (and second nature) it is.

          (And the trouble is, sometimes the correct version just doesn’t ring as well…esp. in this case, where the “tenth man” is such a common & sort of similar-meaning metaphor in baseball!)

  1. If the nightmare scenario of that implication ever came to pass, I can easily envision the eventual splintering of this country into two (or perhaps more) separate nations. The “red” and “blue” divide just seems to have become an ever-widening chasm with almost no hope of establishing common ground.

    We’d have the United States of Jesus and the United Festivus For The Rest of Us.

    1. Wasn’t there something like that before?

      I wonder which other Amendments don’t apply to States.

  2. “Under what interpretation is that not applicable to the states? Are Scalia and Thomas saying that although Congress can’t have make an established religion, or prohibit exercise of some religions, or prohibit freedom of the press, the states can?”

    Actually, that’s precisely the way the Bill of Rights was interpreted for a long time. It was only after applying the Due Process clause of the Fourteenth Amendment that the court started the process of “incorporating” the Bill of Rights and applying them to the state.

    1. Exactly. The Bill of Rights was written to protect citizens and states from the Federal Government. Today it seems insane, and fortunately the 14th amendment and reasonable Supreme Courts have adapted the original interpretation to the present times and mores. Unfortunately, originalists will keep trying to impose 18th century mentality to our 21st world.

  3. Although I disagree with the action by the Town of Greece (and I am not an expert on constitutional law), it was not Congress that implemented any of the decisions taken in the Town of Greece. A strict reading of the first amendment does not provide guidance for what a body other than Congress can or cannot do. IMHO. The decision by the Town of Greece seems to me to be a tool for alienation and reduction of democratic engagement of citizens.

    1. A strict reading of the first amendment does not provide guidance for what a body other than Congress can or cannot do.

      Please read comment #4, about the fourteenth amendment.

      1. This has not been “settled law for over 140 years”. It wasn’t until 1925 that the first 8 Amendments were deemed by SCOTUS to apply to the states. After which, there followed 45 years of disagreement over how and to what degree that they apply. The Warren Court of the 1960’s solidified the notion that specific rights enumerated by the first 8 applied equally to the states.

        Americans, for the most part have grown up with these rights and believe that they have always had them. Not true…and the justices are still arguing over this issue. Who knows how long we can retain these rights?

        1. Why go backwards?

          If something is a right, it’s a right everywhere. A person isn’t more or less of a person when they cross a political boundary.

          1. You and I don’t want to go backward, but many people do. Roe v Wade was also decided using the 14th amendment (the best darn amendment in the Constitution, btw…followed closely by the 21st). I could see a woman’s right to choose being overturned if one more Scalia type gets on the Court. This right has been settled law for over forty years and could be overturned quicker than Alito can say “me too”. Our rights are fragile things and should be vigorously defended, or we will lose them.

            1. Some good could come out of any reversal of Roe v. Wade (not that I want to see it happen). It would blow the Republican party apart. They have been promising the far right for decades to outlaw abortion if it just wasn’t for those dang judges. If they had to actually try to outlaw abortion at the state level (where SCOTUS would undoubtably throw it) they would alienate many women, including conservative women. The “soccer mom” phenomenon would be writ large. If they didn’t follow through, they would lose the Religious Right. Either way, the Republicans could become a minority party for the foreseeable future.

              1. Sacrificing women’s rights in order to cause a split in the GOP is probably unnecessary. (I predict) gay rights is going to cause that to happen anyway.

              2. They have been promising the far right for decades to outlaw abortion if it just wasn’t for those dang judges.

                -This ignores the possibility of jurisdiction-stripping, which Ron Paul advocated.

  4. “Under what interpretation is that not applicable to the states?”

    It wasn’t clearly applicable to the states, at least not until the passage of the 14th amendment.

    1. I thought, as well, that the 14th Amendment – Privileges or Immunities Clause – trumped States’ Rights.

      1. Incorporation of the Bill of Rights began with the passage of the 14th Amendment, but the 1st wasn’t officially incorporated by the Court until the 1920’s.

        1. While true, these first decisions you speak of actually only incorporated the free speech, press and assembly portions of the first amendment. It wasn’t until the 1940s that the SCOTUS began issuing decisions that applied the religion clauses of the First Amendment through the 14th Amendment to the states. The first decision was Cantwell v. Connecticut issued in 1940. This incorporated the Free Exercise clause. The Establishment Clause was incorporated in 1947 when the Court issued its Everson vs. Board of Education decision.

          1. Justice Thomas thinks that Everson was wrongly decided. That is the reason for Part I of his dissent. Contrary to Jerry’s post, Scalia did not join in this part of Thomas’ dissent. Also, Scalia does not look to the original intent of either the framers or ratifying conventions. He looks to the meaning that a reasonable person would have given to the relevant constitutional provisions (in this case, the First and Fourteenth Amendments) at the time they were ratified. This is known as “original meaning,” not “original intent.”

            1. Thanks for the clarification, but I took Scalia’s concurrence with Thomas from the post I cited, so blame that one. I have not read the original decisions. Regardless, the decision was a disaster for this country. And of course Jefferson and Madison were certainly reasonable people, and they were opposed to government entanglement with religion. I find it hard, frankly, to distinguish between “original meaning” and “original intent,” since someone’s intention in writing an amendment would have been connected with how that amendment was construed by a reasonable person. If that’s “originalism”, then it’s also obscurantism.

              1. The difference is between what the drafters subjectively intended the provision to say on the day it was passed and what a reasonable person would have objectively thought the provision said when reading it on the day it was passed. This analysis usually leads to the same result, but not always. For instance, the literal language of the Second Amendment is arguably broader than the framers’ intent. (And, my bad, Thomas concurred in part; he did not dissent, though he disagreed with everyone else on incorporation precedent).

  5. It says “Congress shall make no law…” It does not say “The States shall make no law…”

    HOWEVER, this was addressed in the series of amendments known as the Civil War amendments.

    I have not read the opinion, so i don’t know how they are trying to carve out an exception for the establishment clause. It will be interesting to read, but ultimately, I suspect, they will fall back on “If a community has been violating federal law for a long time, it is OK to keep violating that law because they have a tradition of violating the law.”

    I realize Scalia and Thomas would like to return us to a time before the civil war, but I, for one, will not go witht hem into that dark night.

  6. What strikes me most from the analysis is that Roberts and Alito are using a logic (or trick) very similar to the one they used in the latest campaign finance case. There, they said that “corruption” only includes very narrow quid pro quo exchanges. Anything less overt doesn’t count. Here, they say that “coercion” only includes actual legal coercion – basically, unless one of the government representatives orders you to pray or verbally assaults you for not praying, they aren’t being coercive. And again, anything less overt doesn’t count.

    Its very parallel. Not to mention very stupid, and very scary in terms of how we might predict they would rule on other cases. What’s next, it doesn’t count as sexual assault if there’s no penetration? The police aren’t being brutal or torturing you if they don’t physically hit you? How about insider trading? It doesn’t count if the trader did not get actual formal documents from the information seller? This sort of extremely narrow view of what constitutes ham to the general public could lead to all sorts of trouble.

    1. Well said. Non-coercive means different things to the majority than to any minority.

  7. This decision is a wholesale abandonment of the idea that government should be neutral on religion.

  8. A number of the States actually had established religions at the time that the Bill of Rights was written and ratified. It is very clear from the contemporary and successive history that the framers did not intend for these States to disestablish their established religions.

    1. Yes but see the many many comments above regarding the 14th amendment. From the beginning, the 1st amendment *was* interpreted as preventing the US federal government from establishing a single state religion, so when the 14th amendment applied the bill of rights to the individual state governments, that put the legal kibosh on individual state churches.

    2. It is very clear from the contemporary and successive history that the framers did not intend for these States to disestablish their established religions.

      Yet the effect of the First Amendment was that states did disetablish their religions. By early in the nineteenth century all states had disestablished their religions, and no longer supported them with taxes. Massachusetts was the chief laggard and was the last state to disestablish the churches, in 1833. (They had the peculiar system of requiring every man to belong to a church, and allowing the churches to tax their members.) Of course, cultural and legal disestablishment took longer. Anti-Christian remarks were still prosecuted and non-Christians were still barred from serving as witnesses through the Civil War era. And, as mentioned above, legal disestablishment did not come until the Fourteenth Amendment.

  9. I have run across people that read the 1st Amendment as a prohibition on Congress…and only Congress.

    I have pointed out that if ONLY Congress has such a prohibition and that any other government agency can establish a religion (such as a state) then “freedom of religion” is a fiction. If a state A were to make it law that religion B was the One True and Official Religion, that would make all other religions (and nonbelievers) second class citizens.

    I have never gotten one of these “Congress Only” people to see that point, but then it would interfere with their sense of Christian (it has always been a Christian) privilege.

  10. Retired justice Stevens just wrote a book with recommendations to set right Right Wing judicial activism/Congressional lunacy (I copied this excerpt from a blog post that also reviews a book by a conservative ignoramus containing 8 nutty notions only a historical revisionist could agree with):

    Contrast this with the proposals in retired Supreme Court Justice John Paul Stevens’ new book Six Amendments. Only one of Stevens’ amendments — adding a phrase to the Eighth Amendment to define the death penalty as cruel and unusual punishment — would change what Stevens’ argues was the Founders’ original intent. (Hanging and the firing squad were common in the founding era.) He composed the other five to reverse the drift of wrong-headed judicial interpretation.

  11. Well, when the judges are not appointed on merit but rather on ideological grounds and party membership, this thing eventually happens. It’s all happened before – a federal judiciary in the pockets of the parties and effective erosion of the role of the judiciary. I guess these days, unlike Nixon’s era, the judges are carefully vetted to be puppets.

  12. I am not an US constitutional scholar; I am not even a US citizen; and I am surely in favour of the separation of state and church.

    But yes, a plain reading of that clause shows that it applies to congress, not to the states. I mean, it says so, right there in the text! How clearer can it get? Just like a plain reading of the gun amendment shows that it was meant to allow regulated militias (which could be interpreted as just another word for army), not to allow every bozo to buy five semiautomatics at a gun fair.

    One of the problems with USAn discourse as observed on the internet appears to be that both sides – left and right – base their argumentation on the holy constitution which is totally wise and awesome and merely needs to be interpreted in the “right” way, no matter how much the actual text has to be twisted for that purpose. (That approach sounds familiar, but I can’t quite put my finger on it. Something about sophisticated something or other [TM]?)

    Perhaps at some point one should do what everybody else has done repeatedly since the USA were founded: realise that from time to time a new constitution is in order. Say, one that wasn’t written when slavery was acceptable, when the idea of women voting or even working would have been laughed out of the room, when the weird electoral college system still made sense because you couldn’t just send the local results to Washington via phone or internet, and when the pinnacle of gun technology was a one-shot.

    1. There is the original law, and then there is case law. Both have the weight of law.

      Amendments change those things. The 14th amendment makes it illegal for a state to restrict rights that a person has by federal law.

        1. What general point? You seem to be arguing that the constitution needs to be updated or a new one be made because of things like slavery, women’s suffrage, and the fact that a plain reading of the first amendment’s religion clause only applies to Congress. But we fixed all those issues with amendments. Now I’m not saying the result is perfection, but it seems to me that the process of amendment has generally expanded individual rights and kept the constitution up to date in terms of how society views people’s rights to life, liberty, and pursuit of happiness. So I don’t think you’ve got a good argument for chucking the whole thing, because historically the amendment process has done exactly what you want done, and it’s done it without the risk, wholesale uncertainty, and chaos that would accompany a complete rewrite.

          1. When a document is amended, the text is changed: bits are deleted, other bits substituted. As I understand it, in the Westminster system that’s what happens when an ‘act to amend’ is enacted.

            The US constitutional ‘amendments’ don’t work that way: instead they’re appendices. The original text is held sacred, and that’s probably bad.

            What’s the word for ‘Constitutionolatry’?

            1. Ha, good term! Constitutionolatry was my point – the treatment of an imperfect document created by fallible humans as the basis of all discourse and the font of all wisdom. When the question that should be “what is right?” gets turned into “did the prophets founding fathers agree with my position, or can I twist their words to look like it?”, there might be a problem.

            2. > The US constitutional ‘amendments’ don’t work that way: instead they’re appendices. The original text is held sacred

              No, the amendments can rescind original text. For instance, Article 1, Section 2 states that the number of federal representatives should be based on population, with each slave counting as three fifths of a person. This was overturned by the 13th and 14th amendments.

              No one went back and crossed out the original sections, but that doesn’t mean they weren’t rescinded.

          2. Exactly. And gawd forbid what current politicians & government flukies would come up with now. I can’t imagine a new document anywhere close to the enlightenment values of the original with its ammendments.

Leave a Reply