« A Right to an Unanimous Jury at the State Level: Incorporating the Sixth Amendment Jury Trial Right
Mike Rappaport
| Main | Julian Davis Mortenson: When May the Executive Break the Law?
Michael Ramsey
»

05/06/2014

Greece v. Galloway: The Establishment Clause and Original Expected Applications
Michael Ramsey

Justice Kennedy’s majority opinion in Greece v. Galloway, the legislative prayer case, relies significantly (though not exclusively) on history, following the previous legislative prayer case Marsh v. Chambers. Kennedy wrote:

… Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted "by reference to historical practices and understandings." County of Allegheny, 492 U.S., at 670 (KENNEDY, J., concurring in judgment in part and dissenting in part). That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society. D. Currie, The Constitution in Congress: The Federalist Period 1789-1801, pp. 12-13 (1997). In the 1850's, the judiciary committees in both the House and Senate reevaluated the practice of official chaplaincies after receiving petitions to abolish the office. The committees concluded that the office posed no threat of an establishment because lawmakers were not compelled to attend the daily prayer, S. Rep. No. 376, 32d Cong., 2d Sess., 2 (1853); no faith was excluded by law, nor any favored, id., at 3; and the cost of the chaplain's salary imposed a vanishingly small burden on taxpayers, H. Rep. No. 124, 33d Cong., 1st Sess., 6 (1854). 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. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. County of Allegheny, supra, at 670 (opinion of KENNEDY, J.); see also School Dist. of Abington Township v. Schempp, 374 U.S. 203 , 294 (1963) (Brennan, J., concurring) ("[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers"). 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. See Van Orden v. Perry, 545 U.S. 677 , 702-704 (2005) (BREYER, J., concurring in judgment).

And later, addressing the plaintiffs’ contention that the clause required the prayer to be nonsectarian:

An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court's cases. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could "coexis[t] with the principles of disestablishment and religious freedom." 463 U.S., at 786 . The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. One of the Senate's first chaplains, the Rev. William White, gave prayers in a series that included the Lord's Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom's Prayer, and a prayer seeking "the grace of our Lord Jesus Christ, &c." Letter from W. White to H. Jones (Dec. 29, 1830), in B. Wilson, Memoir of the Life of the Right Reverend William White, D. D., Bishop of the Protestant Episcopal Church in the State of Pennsylvania 322 (1839); see also New Hampshire Patriot & State Gazette, Dec. 15, 1823, p. 1 (describing a Senate prayer addressing the "Throne of Grace"); Cong. Globe, 37th Cong., 1st Sess., 2 (1861) (reciting the Lord's Prayer). …

It’s not (typically for Kennedy) an exclusively originalist opinion, but this is a strong originalist element. My question: is it the right sort of originalism? Answer: yes and no. Kennedy’s principal contention (following Marsh) is that the people who proposed the First Amendment also authorized sectarian legislative prayer, so the Amendment must permit it.

In academic terms, this is a version of “original expected application” – that is, how did the framers of a provision anticipate it affecting existing practices? It is fashionable in academic circles to look down on original expected applications. Under original meaning originalism, the question is: what did the text mean? It’s not, what did some people at the time think it would mean (or, worse, how did some people at the time apply it in practice once it was enacted)? If that’s right, Kennedy is looking in the wrong place – it shouldn’t matter what people thought would happen to legislative prayer, but rather what the text actually meant for legislative prayer.

I share some of this view, but not all of it. So I have some sympathy for Kennedy’s argument. I agree that what ultimately matters is the text, not what particular people (or even everyone) thought of the text. Further, what some people thought of the text may be a poor indicator, because the people cited may have been outliers, or making self-interested arguments. Expected applications must be treated with caution, and doubly so for views expressed after ratification.

At the same time, though, expected applications can be good evidence of what the text actually meant.  The text does not have a platonic meaning apart from what people at the time understood it to mean. If a very broad consensus at the time of enactment (or shortly after) thought that provision X did not ban activity Y, that is surely strong evidence that the original public meaning of X did not ban activity Y. This seems especially true of a phrase (like establishment of religion) that may have been a term of art at the time but whose meaning has become obscured to modern readers. The enacting generation was much closer to the language and substituting our view for theirs seems problematic as a strategy for finding the text’s meaning in their time.

So I think the result in Greece v. Galloway is probably right, for at least some of the reasons Justice Kennedy states. But the analysis remains incomplete. Ultimately, an originalist analysis should tie the original expected application back to an original public meaning of the text (since it’s the latter that is what was enacted). That is, there should be a conclusion as to what the text means (consistent with legislative prayer being constitutional). The Court’s opinion does not make that connection. It’s core conclusion is, whatever the clause means, it must allow legislative prayer. But this does come close to saying that it’s the application, not the text, that matters.

Related: Paul Horwitz has characteristically insightful comments as part of a SCOTUSblog symposium on the case: Thoughts on Town of Greece -- If the Kilt Fits.

UPDATE:  Will Baude points to Eric Rasbach's contribution to the same symposium, which argues in part: 

... all of the opinions save Justice Breyer’s concurrence focus on history in reaching their conclusions. The majority opinion announces a new rule that all Establishment Clause “tests” must be evaluated in light of historic practices ... The principal dissent if anything delves into more history than the majority, rightly pointing out that a concern for the protection of religious minorities was part of the Founders’ religious settlement. The majority and the dissent disagree both over the content of that history and how it plays out in the context of municipal legislative prayer. But history is the battlefield on which the opposing opinions meet.

...

[The historical approach]  has several advantages. Rather than take the endorsement test approach of forcing judicial officers into the uncomfortable and irreducibly subjective role of psychological representative of society, the historical approach gives judges objective facts to work with. The context for any given practice that is challenged is no longer the judge’s mind, but the ascertainable facts of historical tradition.