Justice Kagan and the 'Naked Public Square'
9:45 AM, May 7, 2014 • By ADAM J. WHITE
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.
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:
She expands the point, just a few pages later:
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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