Friday, November 8, 2013
Legislative Prayer: Podcast from the National Constitution Center
Today I participated in an audio podcast, organized by the National Constitution Center, on this week's legislative-prayer argument in the Supreme Court (Town of Greece v. Galloway). The other participants were Marci Hamilton, Steven Smith, and moderator Jeff Rosen, law professor and the (relatively) new president/CEO of the Center. It was a very enjoyable discussion; read about it and listen to it. Focused as I am these days on threats to the free exercise of religion, I included an argument that special limits on government-sponsored prayer under the Establishment Clause should be matched by special protections for religiously motivated conduct under the Free Exercise Clause.
Swanson on "Patents, Politics, and Abortion"
For someone like me, interested in the intersection of intellectual property and religious thought, this forthcoming book chapter "Patents, Politics, and Abortion" by Kara Swanson (Northeastern) is fascinating. From the abstract:
The politics of life within the patent system are remarkable because of their unremarkability. Usually, patent law is considered in complete isolation from the explosive mixture of medicine, religion, law and politics that have made the legal and social status of abortion controversial in the United States since the antebellum period. The actions of the patent office and the details of patent doctrine have been ignored in contemporary abortion politics, and the patent office has maintained a reputation as a non-political, technical agency. . . .
. . . In Part III, I consider the post-Chakrabarty history of the politics of life within the patent system by looking briefly at two late twentieth-century controversies involving inventions and the politics of life, the "abortion pill," RU-486, and human-animal chimeras. Based on this historic review of the politics of life within the patent system, I argue that (a) that the patent system is deeply implicated in the politics of life in the United States, and (b) the patent office has been remarkably successful in hiding that fact.
Scholars of abortion and bioethics should find this interesting too. A couple of reflections about the relation between intellectual property (IP) and religious/moral perspectives:
First, the presumptions that have dominated in the past 40 or so years are that the Patent Office is neutral and technocratic, and that granting a patent as a property right is the neutral baseline for any kind of new technology (as the Court put it in Chakrabarty, the original genetic-patenting case in 1980, if any category of technology is to be excluded from patentability because of moral concerns, Congress should do so explicitly). Patents on abortion-related inventions like RU-486 have escaped pro-life scrutiny in part because the conservative side of the political spectrum--with which the pro-life movement has been aligned--has been very positive on patents in general, seeing them as simple property rights. (I must add that liberals have generally been pro-patent too: Swanson is right that patents came to be seen as an apolitical good by everyone.) Pushing for limits on patentability in this context might well require conceding that patents are not simple "property" that should be near- absolute in its scope, but rather a limited (though important) property-type entitlement granted to achieve social purposes and subject to social limitations. As I've argued elsewhere, that more limited conception of patents (and IP in general) fits better with Catholic thought concerning the "social mortgage" that exists on property for the good of all, especially the poor and the developing nations.
Second, however, Swanson points out another reason the pro-life movement didn't challenge patents on abortion-related inventions. Although patents (like other IP) are meant to encourage innovation, they do so by giving the patent-holder a (20-year) monopoly. Thus for that term, the patent may well limit broad distribution of the invention. At the very least it can allow opponents to concentrate on just one entity and try to get it to refrain from marketing the invention in a certain area. As Swanson points out, RU-486 opponents were successful in pressuring the European patent-holder to "refus[e] to seek FDA approval or to license any other company to do so through the 1980s."
At any rate, a very interesting piece.
Calo Reviews "The Tragedy of Religious Freedom"
Zachary Calo has posted a very generous review of The Tragedy of Religious Freedom. Zak's penetrating criticisms of the book are well worth reading and thinking over. In particular, the interaction of theology and law is a theme that he himself has been developing over the years in superb writing. And I am coming to agree that it would have done the book some good to explore those issues more explicitly. But at any rate I am grateful to Zak for pressing these points in such a characteristically thoughtful and well-crafted way. Here is a bit from the review:
If the book does not fully diagnose the problem, it is also arguable that the logic animating the method of tragedy and history does not fully respond to the present situation. In particular, it might be that a full response needs illumination from theology. Such an impulse seems at time present in the book. There are echoes of transcendence in DeGirolami’s account of tragedy and history, but the book contains unexploited resources for drawing a theological imaginary more fully into the jurisprudential task.
His account of tragedy...rests on the insight that we inhabit a moral universe in which it is not possible to fully instantiate moral goods. Yet in so proposing, DeGirolami is not simply commenting on the quandaries of practical ethics, but describing what it means to act responsibly, to judge rightly and prudently, in a world defined by such limits. A jurisprudence grounded not in abstract principle, but in the lived experience of the world, cannot but confront the need to make tragic choices. “In law,” DeGirolami writes, “it is necessary that one side win and the other lose, yet the inevitability of loss does not preclude choice.” Law, DeGirolami adds, might even be “centrally about the sacrifices entailed by choice making” (p. 99). In encountering such language, one thinks of Augustine’s judge in Book 19 of City of God. Confronted by the “darkness” of making tragic choices, the judge yearns to escape the misery of the office. Yet, impelled by duty, the judge submits to unhappiness, executes the violent decisions of law, and cries out to God with the Psalmist “From my necessities deliver Thou me.” Tragedy finds a paradoxical if limited coherence only within this divine economy. Though DeGirolami never frames his account of tragedy on such express theological turns, an Augustinian impulse never seems far from the surface of his account.
Girgis on the Mens Rea of Complicity
Sherif Girgis, known to readers of Mirror of Justice for his scholarly contributions in other contexts, has published an extremely interesting note proposing a new view of the mens rea of accomplice liability. Rather than focusing on the accomplice's state of mind as to the principal's offense, Girgis argues that one should focus on the accomplice's state of mind as to the principal's state of mind. To put it in concrete terms, if Cassius sells Brutus a knife and Brutus kills Caesar with the knife, then in order to convict Cassius as an accomplice, we ought not to focus on the degree to which Cassius knew or intended that Brutus would kill Caesar with the knife, but instead on Cassius's investment in Brutus's intention (not in Brutus's act) to kill Caesar. For Girgis, this would allow us, for example, to convict Cassius of accomplice liability if he drives Brutus's getaway chariot, having gotten his payment for doing so up front. It would justify accomplice liability whether or not Brutus was ultimately successful in killing Caesar. It's Cassius's disposition toward Brutus's intention, not Cassius's disposition toward Brutus's act, that makes the difference in Girgis's account. "So we can infer that Cassius at some point stands ready to promote Brutus’s intention—to get him to stick to the plan, if he starts to waver."
It's a very interesting approach, and one that, as Girgis rightly notes, ought to be of particular interest to those that recognize retributivism as a legitimate penological function (Girgis does not defend accomplice liability on any specific ground--his aim in this paper is to explore the mens rea of complicity). One question I had concerns the mens rea of knowledge. Girgis writes that accomplice liability for knowledge alone picks up too many cases in which we would not want to assign liability, while accomplice liability for purpose to accomplish the malign end is too demanding. I agree with the latter view. But I can imagine situations in which knowledge might shade into the sort of culpable state of mind as to the principal's intent that matters to Girgis. Suppose a gun salesman knows that it is extremely likely (bordering on certain) that the guns he sells will be used by the purchasers to kill members of rival gangs. And suppose further that nearly all of the gun salesman's revenue comes from selling these guns to these purchasers. Couldn't we say that at that point, the gun salesman's stance as to the purchasers' state of mind is culpable--that he "intends" the purchasers' "guilty minds"? I suppose it might depend on the level of specificity that we require as to the victim (killing X vs. killing unspecified members of rival gangs). But if we could say that, then it seems that we would need a graduated approach to the mens rea of knowledge in these kinds of cases (I think Girgis alludes to something like this at 477). At any rate, read the piece.
Thursday, November 7, 2013
A promising partnership
From ZENIT: "Catholic Relief Services, the charity organization of the US bishops, is partnering with Special Olympics International to expand services for those with intellectual disabilities in developing countries and help them thrive.
. . . The partnership builds on the strengths of each organization. CRS
works in 91 countries providing solutions to address tough problems such
as poverty, hunger, drought, disease and emergencies, reaching more
than 100 million of the world’s poorest people each year. Special
Olympics has grown to become the largest global public health
organization dedicated to serving people with intellectual disabilities.The chairman of Special Olympics, Timothy Shriver, noted how those with disabilities "are among the most marginalized, isolated and neglected populations in the world."
"They and their families have not been adequately or proportionately represented in development strategies, interventions, funding or goals," he said. "This partnership will help address that urgent need."
The CEO and president of CRS, Carolyn Woo, also welcomed the partnership, saying it will help the aid agency to "strengthen health systems to diagnose and address the needs of children with intellectual disabilities." "
Response from Scholars Supporting "Marriage Conscience" Religious Liberty Protection
For several years now, two groups of religious-liberty scholars have been urging state legislatures considering recognizing same-sex marriage to address religious liberty issues explicitly and give meaningful "marriage conscience protection" to religious objectors. (See archive of our letters/memos. One group of us is made up entirely of supporters of same-sex marriage; the other group includes some supporters, some opposed or skeptical, and some undecideds; but we all support meaningful religious-liberty protection.) Now our arguments and proposal have been criticized by another group of five constitutional scholars who wrote last week to Illinois legislators. Dale Carpenter, one of the five, has posted their letter and summarized its arguments at the Volokh Conspiracy. We’ll do a full response to the letter, but that requires more length and detail than a blog post permits. So here we respond to Professor Carpenter’s post and the general arguments of the letter that it reflects.
1. Carpenter’s first assertion, summarizing his group’s letter, is that “recognizing same-sex marriage creates no distinct legal conflict justifying resolution in a same-sex marriage bill,” because the “cases in which such conflicts are said to exist arise entirely from pre-existing antidiscrimination law” and should be handled through that pre-existing law. Let’s begin by making one point clear: our proposal does not aim to deal with conflicts between antidiscrimination law and religious objectors in general. Under our proposal, antidiscrimination law can still require religious individuals and groups in many contexts to serve or employ gays and lesbians who are in same-sex marriages. We protect objectors when they would be forced to facilitate the conduct directly or affirmatively “recognize the marriage”: religious marriage counselors counseling same-sex couples, religious colleges opening married-student housing to same-sex couples, etc. We protect a refusal to facilitate or recognize the union itself, not a refusal to deal with an individual simply because he or she is in such a union.
Carpenter’s group makes a fair point that objections to facilitating same-sex unions predate the recognition of same-sex marriage. But the statement that recognizing same-sex marriage “creates no need to adjust the degree of protection" ignores reality: same-sex marriage does change the picture. Most obviously, it increases the number of potential conflicts. The number of same-sex marriages is accelerating rapidly as more states (especially larger states) are recognizing it. There will be a lot more wedding ceremonies than there were commitment ceremonies. Beyond that, for many religious objectors marriage is a different matter than a non-marital union: marriage for them is a sacrament, and state recognition of same-sex marriage makes antidiscrimination law apply to a matter of profound religious significance. That view should not of course determine how the state defines civil marriage, but neither should the state ignore it in determining the fair scope of protection for conscientious objectors.
Moreover, recognition of same-sex marriage without explicit exemptions will likely weaken the legal strength of religious conscience claims beyond the situation of marriage. This is because of, among other things, what might be called the "Bob Jones effect," named for the fundamentalist college whose federal tax exemption was stripped in the 1970s because it forbade interracial dating by students. The Supreme Court upheld that penalty because it found that "myriad" laws against race discrimination in education, which had few if any exemptions, showed a "firm national policy" that would permit no exception even for a small college that attracted no one but like-minded students. Marriage traditionalists can reasonably fear similar consequences for their beliefs if same-sex marriage—the latest of many steps toward gay/lesbian legal equality—is repeatedly enacted with few or no exemptions. If prohibitions on sexual-orientation discrimination, like those on race discrimination, must have few or no exceptions, then state or federal tax exemptions may eventually be at risk for virtually every evangelical, traditional Catholic, Orthodox Jewish, or Muslim school and social service. Passing same-sex marriage without explicit exemptions can easily send a message that the traditionalist views on sexual morality must be marginalized in every context, not just marriage.
Carpenter’s group says that conflicts should be resolved under pre-existing exemptions from antidiscrimination law, but we are not as sanguine about the adequacy of those exemptions. The state provisions vary greatly, as Carpenter’s post acknowledges; many are unclear and open to interpretation, and some gay-rights proponents will push for the narrowest readings (especially after same-sex marriage is enacted and the religious objectors lose any bargaining power). To take just one example, during Minnesota's same-sex-marriage debate last May, Professor Carpenter wrote in an op-ed that the exemption in the state antidiscrimination law was "among the most expansive in the country," protecting "religious nonprofit associations and schools"; but within a couple of weeks, Minnesota's Department of Human Rights, which enforces the law, issued guidelines asserting that the provision "does not exempt [among other entities] nonprofits ... based on religious beliefs regarding same-sex marriage."
The members of Carpenter’s group say that they support religious liberty but that the remedy for any threats to it is to amend pre-existing laws. We would welcome their support for making pre-existing exemptions more secure. However, their letter to Illinois legislators shows little sympathy to such exemptions for religious organizations outside the immediate context of the wedding: for example, for nonprofit marriage-counseling services or adoption services, even when those services are not publicly funded. The letter objects that our proposal would allow discrimination “in situations far removed from the marriage celebration” (p. 8), which describes situations like marriage counseling, adoption placements, or a religious college’s married-student housing. The letter also states that existing Illinois provisions strike “a careful balance between equality and religious liberty” and have “reasonably adjudicated the very few conflicts that had arisen and that might continue to arise” (pp. 4, 6). But Illinois’ specific statutory protections are narrow and uncertain: for example, as our initial Illinois letter (at 16) describes, one exemption protects a religious organization’s employment of members of its own faith; the other does protect certain preferences by religious organizations in housing, but only preferences for “persons of the same religion,” which does not clearly protect a religious college’s decision to limit married-student housing to opposite-sex married couples.*
Moreover, we know, from first-hand experience, that any proposal to strengthen pre-existing exemptions brings the protest that it would go beyond addressing new problems and would "undo existing law." Carpenter's group says that with respect to religious liberty, traditionalist objectors can do nothing to stop water rushing through a hole in their boat; they have to get a broader agreement to plug every crack.
2. Carpenter's second point from his group’s letter is that even if new provisions are needed, our proposal is too broad. This is certainly fair ground for debate, and we welcome discussion about the proper scope of exemptions, as opposed to the unrealistic claim that same-sex marriage doesn't change anything. Carpenter focuses attention on the most controversial cases, small personal-service businesses and government officials. But we should not lose sight of the cases that ought to be non-controversial: must a nonprofit evangelical marriage-counseling ministry counsel same-sex couples? Must a traditionalist Catholic college open its married-student housing to same-sex couples? Far more often than Carpenter’s group admits, these matters are unclear under the existing state laws that the group says must be the sole vehicle for protection.
With respect to the controversial cases, Carpenter’s statement of our proposal is misleading (and false in saying that we extend exemption to "non-religious objectors"; we do not). Far from exempting "inns, restaurants, and other businesses" broadly, as he suggests, we limit exceptions in the business world to sole proprietors and very small businesses (five or fewer employees) that provide services directly facilitating the wedding or the marriage—wedding photography, marriage counseling—that would violate their religious beliefs. We also deny exemption in cases where the couple would have difficulty finding another service provider; in other words, in the case when a religious objection truly conflicts with a couple’s access to services, our proposal says the couple should prevail. When even a limited exemption like that is rejected, individuals will be driven from their professions, not to ensure that couples have access to services—what couple would seek out a counselor who disapproved of the marriage?—but primarily so the state can express the view that the refusal of service is wrong. In any event, to return to the main point: concerns about exemptions for commercial objectors do not warrant leaving thousands of non-profit religious organizations subject to the uncertain coverage of existing state exemptions.
Carpenter describes his group as scholars "who support both protecting religious liberty and recognizing the marriages of same-sex couples." To reiterate, our two groups of scholars also include supporters of same-sex marriage (as well as a variety of views on that issue). We too are seeking to give room to both equality and liberty, which should complement rather than be at war with each other. We are seeking a "live and let live" solution for same-sex couples and religious traditionalists—but "live and let live" requires more than highly uncertain protection for religious liberty under pre-existing laws. Just as same-sex couples seek to live out their identity not only in private but through the social institution of marriage, religious believers seek to live out their identity not only in churches but in their faith-based service activities and their daily lives. Minimizing the exemptions in a same-sex marriage bill marginalizes those believers and will result in continuing, unnecessary conflicts that may well harden resistance to marriage recognition among a significant number of people. But same-sex marriage with strong exemptions allows both sides to live out their deepest commitments.
Thomas Berg
Carl Esbeck
Edward Gaffney
Richard Garnett
Douglas Laycock
Bruce Ledewitz
Christopher Lund
Michael Perry
Robin Fretwell Wilson
* UPDATE (Nov. 9, 2013): This post has been amended, at the point in text marked by the asterisk, to delete quotes from previous scholarly articles written by Professors Marshall and Lupu (members of Professor Carpenter's group), and to add the four sentences immediately preceding the asterisk. We acknowledge that Marshall has allowed that some legislative accommodations of religion are constitutional, and that Lupu has more recently expressed openness to some exemptions for religious organizations in a same-sex marriage bill. See, e.g., Lupu and Tuttle, “Same-Sex Family Equality and Religious Freedom,” 5 Northwestern J. of Law & Social Policy 274 (2010). However, as we explain in the added text, the group letter just submitted in Illinois shows little sympathy for protecting religious organizations other than in the narrow context of the wedding celebration itself—where protection is already guaranteed as a minimum requirement of the Constitution.
More on the Town of Greece case
Here is a short op-ed by me, at CNN, on the Town of Greece case. A bit:
It is always risky to make predictions about the Supreme Court's decisions based on what is or is not said by lawyers and justices at oral argument. It is also almost impossible to resist the temptation to hunt through the transcripts for clues and tea leaves.
On Wednesday, the justices heard arguments in a case called Town of Greece v. Galloway, which involves a challenge to a small New York town's practice of opening its board meetings with short prayers, delivered by volunteers. A lower federal court ruled last year that the town of Greece's prayers -- but not necessarily all legislative prayers -- violate the First Amendment's rule against "establishments" of religion.
Arguing for those challenging the prayer was one of the most respected legal scholars in America, Douglas Laycock. As his argument time was running down, Justice Elena Kagan -- one of the two justices nominated by President Obama -- shared an interesting and revealing observation. She emphasized how important it is to "maintain a multireligious society in a peaceful and harmonious way" and then added, "every time the court gets involved in things like this, it seems to make the problem worse rather than better."
A clue? Perhaps . . .
And, relatedly, here's a piece by the Becket Fund's Daniel Blomberg, "Does the Constitution Require Least-Common-Denominator Prayer?"
Reflections from the City of God: On the Role of Religion in Inculcating Civic Virtue
I've been delayed in writing about my next selection from the City of God--this one from early in Book II,
a book devoted to exploring the extent to which the Roman gods did not protect Romans from sundry disasters. But the particular disasters Augustine has in mind are moral disasters--not disasters of the body but disasters of the soul--and he highlights the vice and civic decay not only enabled but positively stimulated by the Roman gods. Here is Book II, Chapter 6, in full:
This is the reason why those divinities [MOD: in the previous chapter Augustine discusses Cybele, the "Earth Mother," in particular] quite neglected the lives and morals of the cities and nations who worshipped them, and threw no dreadful prohibition in their way to hinder them from becoming utterly corrupt, and to preserve them from those terrible and detestable evils which visit not harvests and vintages, not house and possessions, not the body which is subject to the soul, but the soul itself, the spirit that rules the whole man. If there was any such prohibition, let it be produced, let it be proved. They will tell us that purity and probity were inculcated upon those who were initiated in the mysteries of religion, and that secret incitements to virtue were whispered in the ear of the elite; but this is an idle boast. Let them show or name to us the places which were at any time consecrated to assemblages in which, instead of the obscene songs and licentious acting of players, instead of the celebration of those most filthy and shameless Fugalia [MOD: civil feasts] (well called Fugalia, since they banish modesty and right feeling) [MOD: I think that Augustine is relying here on the root, 'fuga,' meaning 'flight'], the people were commanded in the name of the gods to restrain avarice, bridle impurity, and conquer ambition; where, in short, they might learn in that school which Persius vehemently lashes them to, when he says:
Be taught, ye abandoned creatures, and ascertain the causes of things; what we are, and for what end we are born; what is the law of our success in life; and by what art we may turn the goal without making shipwreck; what limit we should put to our wealth, what we may lawfully desire, and what uses filthy lucre serves; how much we should bestow upon our country and our family; learn, in short, what God meant you to be, and what place He has ordered you to fill.
Let them name to us the places where such instructions were wont to be communicated from the gods, and where the people who worshiped them were accustomed to resort to hear them, as we can point to our churches built for this purpose in every land where the Christian religion is received.
One of the interesting features of the this chapter and, indeed, the entire book is the extent to which Augustine believes it to be religion's role to inculcate virtue--including civic virtue--in its adherents. The morality that Augustine is discussing is not a private or interior morality, at least not solely. In the previous chapter, he castigates the Romans for bestowing their finest citizens with the honor of a statue of "that demon Cybele." Robert Dodaro writes: "[E]ven Rome's best citizens are deceived by Cybele, the 'Mother of the Gods.'" Dodaro, Christ and the Just Society in the Thought of Augustine 45. And here, Augustine specifically mentions the morality not of individuals, or even of families, but of "cities and nations." The context in which he condemns Roman vice is not personal, but public--the feast of Fugalia, which so far as I can tell is a civic feast celebrating the expulsion of the Roman kings. And the fragment he quotes from the stoic Roman satirist Persius concerns both private and public virtue ("how much we should bestow upon our country and our family").
Augustine clearly believes that it is an important function of religion to inculcate civic or public virtue and honor. Religion is not a privatized or purely personal phenomenon, and any religion worth its salt must do more than "whisper" "secret incitements to virtue" "to the elite" (notice that by highlighting the "elite," Augustine is emphasizing the importance of religion's influence on the powerful, including the politically powerful). It must inform their private and public lives. It must provide a public forum--a place of assembly--for the discussion of virtue to occur (not just a private "whispering"). And it must "vehemently lash" public men. Christianity, Augustine believes, performs these functions, while the Roman gods failed to do so.
A final aside: I was struck by the fragment of Persius, because it sounds so much like the words that Dante puts into the mouth of Ulysses in Canto XXVI of Inferno as he sails to the ends of the earth (118-20):
Considerate la vostra semenza:
Fatti non foste a viver come bruti,
Ma per seguir virtute e canoscenza.
"Consider your origins: You were not made to live like beasts, but to pursue virtue and knowledge." Unfortunately for wandering Ulysses (at least in Dante's telling), he was not in the end able to discover "by what art we may turn the goal without making shipwreck."
Wednesday, November 6, 2013
The Catholic Scholar
Over the past couple of years, I've had the privilege of getting to know Fr. Michael Sweeney, OP, President of the Dominican School of Philosophy and Theology (Berkeley). As I spent time in Fr. Michael's presence and company, I soon discovered that what he has to say -- whether in his writings, homilies, or extended conversations -- is always worthy of careful attention. He is a wise, inspiring, and provocative intellect, not to mention a wonderfully true vir Ecclesiae.
I'd venture to say that it's sometimes easy to get lost a little about what our point here at MOJ -- developing "Catholic legal theory" -- amounts to. I commend, therefore, Fr. Michael's essay "The Vocation of a Catholic Scholar" (here), as a challenging yet comforting beacon and guide. What Fr. Michael has to say is rich with implications for law and legal theory. The role of the Catholic scholar is, Fr. Michael contends, "redemptive." And, one might go on to ask, if it's not, what's the point of it?
Fr. Michael's insights are, in part, a reflection on the important book by Fr. Sertillanges, OP, The Intellectual Life: Its Spririt, Conditions, and Method, which every Catholic scholar should study.
Thoughts on the arguments in Town of Greece
The Supreme Court heard arguments today in the case of Town of Greece v. Galloway and considered whether opening a Town Board meeting with a short prayer violates the First Amendment’s ban on establishments of religion. The transcript of the oral argument is here. If I were the lawyers, I'd probably be a bit frustrated by the fact that the justices made it so difficult -- and not because their questions were so insightful or to-the-chase-cutting -- to develop their lines of argument. But, that's what oral arguments have become. (Maybe, if more justices followed Justice Thomas's example . . . but I digress.)
As I see it, the lawyers’ arguments and the justices’ questions strongly suggest that the Court will continue to allow legislative prayers, without requiring close judicial scrutiny of particular prayers' content, and will also avoid any dramatic changes to its rules and doctrines. I don't think the possibility of jettisoning the "endorsement test" even came up.
The Court held 30 years ago that legislative prayer is constitutionally permissible, and today’s arguments provide no reasons to think the justices are about to change their minds. As I read it, a majority of the justices seemed to agree that, given the longstanding and widespread tradition of opening legislative sessions with prayer, it would be both inappropriate and strange to announce, at this late date, that this practice is unconstitutionally coercive. And, the justices clearly had serious reservations about getting into the business of closely examining particular prayers to make sure they are sufficiently "non-sectarian", or to draw a constitutional line between prayers that invoke "the Almighty" or "Heavenly Father" and ones that invoke "Jesus Christ" or "Allah.” (It seems to me, as a moral matter, and as a matter of basic decency, those who deliver prayers in public or official settings should keep things fairly "non-sectarian," but I don't think the Constitution requires that every legislative prayer that's delivered be "non-sectarian.")
Justice Kagan’s said, near the end of the argument session, that “every time the Court gets involved in things like this, it seems to make the problem worse rather than better.” This observation, I thought, probably reflects a concern that is probably shared by a majority of the justices, who will almost certainly want to avoid making its Establishment Clause doctrine more confusing and the job of trial court judges more difficult. And, there are two ways to avoid doing this: First, ban all legislative prayer, and second, re-affirm the Court’s earlier decision that broadly upholds the practice as deeply rooted in our traditions and practices. It seems more likely that they'll take the second route.
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