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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:

That’s an interesting set of statements and it echoes something that Justice Kagan said at oral argument–that “when we relate to our government, we all do so as Americans,” not as religious or non-religious individuals. I wonder whether all agree with this view. I'm not sure that I do.

I understand it to be emphasizing and praising equality before the law, and that is certainly a commendable and important ideal.

But an alternative position–and one, I think, entirely consistent with the general principle of “pluralism and inclusion” championed by the dissent–is that “when a citizen stands before her government,” she brings to that encounter the full panoply of communal, institutional, associational, and religious commitments and bonds that have characterized the lives of some of the very best citizens of this country, past and present.

DeGirolami's comment calls to mind the famous lines of Edmund Burke's Reflections on the French Revolution, in which Burke urges that civic virtue is promoted by—not undermined by—each citizen's prior attachments not just to family, but also to social class and our other "little platoons": "To be attached to the subdivision, to love the little platoon we belong to in society, is the first principle (the germ as it were) of public affections. It is the first link in the series by which we proceed towards a love to our country, and to mankind."

Furthermore, as Yuval Levin explains in his recent account of Burke, "breaking apart all the connections that stand between the individual and the state and leaving equal but separate individuals alone would expose them all to the raw power of the state directly. ... The social institutions that stand between the individual and the government are crucial barriers to the ruthlessness of public officials and the occasional cruelty of majorities. They are essential to liberty."

On the other side of this spectrum, at its far extreme, we find Teddy Roosevelt's famous criticism of "hyphenated Americans":

What is true of creed is no less true of nationality. There is no room in this country for hyphenated Americanism. When I refer to hyphenated Americans, I do not refer to naturalized Americans. Some of the very best Americans I have ever known were naturalized Americans, Americans born abroad. But a hyphenated American is not an American at all. This is just as true of the man who puts “native” before the hyphen as of the man who puts German or Irish or English or French before the hyphen. Americanism is a matter of the spirit and of the soul. Our allegiance must be purely to the United States. We must unsparingly condemn any man who holds any other allegiance. But if he is heartily and singly loyal to this Republic, then no matter where he was born, he is just as good an American as any one else.

Roosevelt reiterated a year later, "let us be Americans, nothing else." Such sentiments find echoes, perhaps distant, in Justice Kagan's dissent—at least when she urges each American citizen "performs the duties ... of citizenship ... not as an adherent to one or another religion, but simply as an American."

These arguments cut across familiar political lines; indeed, I suspect that all of us occasionally harbor thoughts on both sides of the spectrum. Conservatives might today share DeGirolami's concerns about Kagan's dissent (and Roosevelt's concerns about "hyphenated Americans"); but they might also have bristled, just a few years ago, at Justice Sotomayor's suggestion that as a justice she would benefit especially from "the richness of her experiences."

And conservatives are not the only ones who likely have seen both sides of these questions. Indeed, note that Justice Sotomayor herself joined Kagan's dissent, despite the notes strikingly at odds with her own account of how each judge's own background affects the judge's work.

These considerations cut across partisan and ideological lines because there is at least a kernel of truth at each extreme. Americans should not stand before their government exclusively as representatives of particular "little platoons." But it would be just as mistaken to race to the other end of the spectrum and assert that Americans must strip themselves of all prior attachments and experiences before engaging the public arena—leaving us with, in Father Richard John Neuhaus's words, a "naked public square."

I am not saying that Kagan intended to imply that our public square is and ought to be "naked." Far from it—if anything, I suspect that she was just a little bit too casual with her opinion's specifics. (In that respect, she would be in good company lately.)

But even if Justice Kagan was just speaking a little too casually, her casual overstatement is an interesting one. Her offhand remark—and DeGirolami's response—ought to challenge all of us to think more seriously about what citizenship and civic duty truly entails.

Adam J. White is a lawyer in Washington, D.C.

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