Dear colleagues,
I thought that Prof. Marc DeGirolami (St. John's) made a number of interesting
and helpful observations - which suggest that at least some matters might have
been clarified a bit -- about Justice Kennedy's opinion in this post ("The
Jurisprudence of Tradition"):
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/05/the-jurisprudence-of-tradition-10-points-on-justice-kennedys-opinion-in-town-of-greece.html
Here are two of his "10 points":
1. By far the most prominent theme in Justice Kennedy's opinion is the role of
tradition and historical practice in validating the practice of legislative
prayer. That point is repeated no less than six or seven times in all kinds of
contexts. The practice is "part of our expressive idiom" and our "heritage."
Justice Kennedy writes that "Marsh is sometimes described as "carving out an
exception" to the Court's Establishment Clause's jurisprudence," inasmuch as no
"tests" were applied in Marsh, but in reality, "[t]he Court in Marsh found
those tests unnecessary because history supported the conclusion that
legislative invocations are compatible with the Establishment Clause" That's
important. It indicates that the mode of analysis in Marsh was not a carve-out,
so much as the place where all Establishment Clause analysis begins, and, under
certain circumstances, where it ends.
2. Note the emphasis on both history and particularism in the following: "Marsh
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....A test that would sweep away what has so long been
settled would create new controversy and begin anew the very divisions along
religious lines that the Establishment Clause seeks to prevent." Very
interesting. The claim seems to be that it is the rigidity of the tests
themselves in this area, and their failure to grant a kind of presumptive
validity to entrenched social practices and traditions, which itself generates
religious division.
Best,
Rick
Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edu<mailto:rgarn...@nd.edu>
To download my scholarly papers, please visit my SSRN
page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, May 05, 2014 1:17 PM
To: Law Religion & Law List
Subject: Re: Supreme Court Decides Town of Greece
Doesn't do much to clarify the topic, does it. So, cannot coerce. Sectarian
is ok. Should not be seen as endorsing because we've done it for so long. It
isn't really that important anyway. And besides the Town tries to spread it
around-it's just that the only religious folk in town are Christian.
We still can't tell the line between endorsement and non-endorsement. We can't
even know whether we are now into just a coercion test to be measured by some
sort of formerly-known-as-endorsement balancing of a bunch of stuff.
So advising city and town councils on how to meet the current establishment
standards would require what? A safe harbor would be do it non-sectarian. A
slightly less safe harbor would be go ahead with the sectarian, but try to
balance who does the prayer among denominations and religions formally
represented in your community. Probably ok would be just one guy from one
religion doing it for years on end in a sectarian manner, as long as it wasn't
coercive (whatever that might mean in this setting) and so long as some sort of
indication was given, regardless of how pro forma and even insincere, that it
the government was not endorsing that particular view or even religion in
general.
It is clear that separation is almost gone from establishment jurisprudence now
and that we are deep into accommodationist mode and that neutrality means not
as between religion and non-religion but only as among religious sects - in
this singular sort of context.
Over a third of my students report that every school day in public schools
started with a prayer over the PA system in their schools.
Steve
--
Prof. Steven D. Jamar vox: 202-806-8017
Director of International Programs, Institute for Intellectual Property and
Social Justice http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://sdjlaw.org
"In these words I can sum up everything I've learned about life: It goes on."
Robert Frost
On May 5, 2014, at 12:44 PM, Friedman, Howard M.
<howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>> wrote:
The Supreme Court decided Town of Greece today, upholding town's prayer
practices in a 5-4 decision. Details at Religion Clause at
http://religionclause.blogspot.com/2014/05/supreme-court-upholds-sectarian_5.html
Howard Friedman
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