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Justice Kagan and the 'Naked Public Square'

9:45 AM, May 7, 2014 • By ADAM J. WHITE
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This week, the Supreme Court affirmed a New York town council's tradition of beginning its meetings with a prayer. In Town of Greece v. Galloway, the court held, by a bare majority, that the First Amendment's Establishment Clause does not prohibit such prayers led by local clergymen, even when the prayers tend to be Christian.

Elena Kagan 2

Interestingly, the court's four dissenters did not oppose such legislative prayers in all cases (as Justices Brennan and Marshall did a generation ago). Instead, they conceded that such prayers can be constitutional, but they further concluded that this town council's particular practice violate the "norm of religious equality," because the prayers "were predominantly sectarian in content" and the council's selection of local prayer leaders "did nothing to recognize religious diversity."

The court's majority opinion and dissent have inspired much discussion—with some of the very best coming from Marc DeGirolami, a law professor at St. John's University and associate director of the school's Center for Law and Religion (and, for that matter, author of one of the best recent books on constitutional law).

In the course of analyzing the justices' opinions, DeGirolami zeroes in on a fascinating comment by Justice Kagan's opinion for the dissenters. Kagan looks beyond narrow questions of the First Amendment and focuses on much more fundamental questions of what it means to be an American.

As she explains, at the outset of her opinion:

Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.

She expands the point, just a few pages later:

Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture. ... The government she faces favors no particular religion, either by word or by deed. And that government, in its various processes and proceedings, imposes no religious tests on its citizens, sorts none of them by faith, and permits no exclusion based on belief. When a person goes to court, a polling place, or an immigration proceeding—I could go on: to a zoning agency, a parole board hearing, or the DMV—government officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans—none of them different from any other for that civic purpose.

There is much to agree with here—most importantly, that all Americans stand equally before government and the law, and thus cannot be disfavored or favored on account of one's particular religion.

But it is Kagan's further point, about what each of us brings to our own role in civil society, that deserves further consideration. Her point surely has superficial appeal.  But does it withstand closer scrutiny? Professor DeGirolami doubts it, and with good reason:

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