"... why does it seem to upset conservative members of the Court so much when anyone questions their side’s good will, and talks about discrimination as a present problem?"

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ELENA KAGAN AND THE POLITICS OF POLITENESS
By Amy Davidson, May 6, 2014

One thing that bothered Justice Elena Kagan, in the case of Town of Greece v. Galloway, was the direction preachers were facing. Since 1998, town-board meetings in Greece, which is near Rochester, in upstate New York, had opened with a prayer, offered by a rotating cast of clergymen. For a long time, every last one of them was Christian, and they often spoke in explicitly Christian terms. (“We acknowledge the saving sacrifice of Jesus Christ on the cross.”) They looked out, as they spoke, at the members of the public who had showed up for the meetings, rather than at the board members themselves, even as they said things like, “Let us pray.”

By a vote of 5-4, the Supreme Court’s justices found that this “prayer opportunity,” as Justice Anthony Kennedy, writing for the majority, called it, was just fine. Greece v. Galloway is, most obviously, about the limits of what the Court has long said was a constitutionally acceptable practice: some sort of prayer or invocation when Congress, say, comes into session. (The immediate questions that the case raises are practical: When do the prayers become so monolithic (or, maybe, monotheistic) that they seem to endorse an official religion? When do they count as proselytizing? And what counts as “legislative prayer,” to borrow Kennedy’s phrase? Kennedy described prayers as something like mood music for politicians:

The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.

Governing may not be an easy task. What is harder, though, is coming in front of a governing body as a citizen—petitioning, needing a variance, in trouble—which is what Kagan argued was going on at those town meetings in Greece. It also points to themes that have pervaded many recent judicial battles, and have played and will play a role in some of the most politicized cases before the Court. What deference do we owe to religious feeling? How inclusive are our politics, for those on the other side of the table, and to whom do we assume they ought to defer? And why does it seem to upset conservative members of the Court so much when anyone questions their side’s good will, and talks about discrimination as a present problem?

A telling internal dialogue in the decisions comes between Kagan and Alito, in which each suggests that the other doesn’t understand the impulse not to be rude. Alito, who concurred with the majority, mocked Kagan’s emphasis on the direction of the preachers: “I expect that the chaplain generally stands at the front of the room and faces the public. To do otherwise would probably be seen by many as rude.” Kagan, in contrast, imagined a Muslim citizen coming to the board to “request some permit,” who, “just before she gets to say her piece, a minister deputized by the Town asks her to pray ‘in the name of God’s only son Jesus Christ.’ ”

She does not wish to be rude to her neighbors, nor does she wish to aggravate the Board members whom she will soon be trying to persuade.

As a result, she is confronted with what Kagan calls an unacceptable choice between joining in the prayer or placing herself apart: “She must think—it is hardly paranoia, but only the truth—that Christian worship has become entwined with local governance.” Kagan imagined how the same principle might operate elsewhere:

It’s election day, and you head over to your local polling place to vote. As you and others wait to give your names and receive your ballots, an election official asks everyone there to join him in prayer. He says: “We pray this [day] for the guidance of the Holy Spirit as [we vote] …. Let’s just say the Our Father together. ‘Our Father, who art in Heaven, hallowed be thy name; thy Kingdom come, thy will be done, on earth as it is in Heaven….’” And after he concludes, he makes the sign of the cross, and appears to wait expectantly for you and the other prospective voters to do so too.

There is an etiquette in political exchanges, which Kagan seems aware of: we make a gesture, we wait expectantly, and demand a certain grace—even when it might be more useful to disrupt it. What that politeness often ignores is need or inequality, which can mark the difference between connoisseurship, condescension, and vulnerability to coercion. As Kagan notes, when describing the pressures on the hypothetical person who comes before the government: “After all, she wants, very badly, what the judge or poll worker or immigration official has to offer.”

Both Kennedy and Alito felt that what they were permitting was more limited than in that hypothetical—what they allowed was just what was traditional. Kennedy noted that the requests to pray “came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive, not coercive”; again, they were just trying to be nice. Those who objected, in contrast, were a bit immature: “Adults often encounter speech they find disagreeable.” Kennedy, in particular, appears to appreciate the aesthetics of the whole operation. He, like Alito, seems to think that the good will and good mood of all involved should dispel any worries.

How does this fit in with the larger mood of the Roberts Court? As Kelefa Sanneh wrote recently, claims that religious freedom must be respected have been showing up frequently and in odd places, such as in suits against Obamacare (notably in the Hobby Lobby case), and Greece v. Galloway may be a signal as to how they will be treated. One can also see echoes of the testy objection, in a whole series of cases, to the idea that any person with a respectable place in society might have racist, homophobic, or otherwise discriminatory views. One hears it, as Jeffrey Toobin has noted, in the opinions gutting the Voting Rights Act. In the oral arguments in Windsor v. United States, the case overturning the Defense of Marriage Act, Justice Roberts referred to gays as exquisitely powerful politically—hardly targets of bias. And, in his opinion in Schuette, upholding Michigan’s ban on racial preferences, Scalia said that it was “shameful” for the court to stand in the way of a supposedly race-blind culture, adding in a footnote that it was “doubly shameful” to see the legacy of Jim Crow in the opposition to affirmative action.

Whether the town-board meetings count as settings for participatory politics or as legislative meetings is, in some ways, a more technical objection than that to the overweening Christian tone that Greece’s prayers took on. The only exceptions to the streak of Christian visiting ministers came during what Kagan called “a brief spell surrounding the filing of this suit (when a Jewish layman, a Wiccan priestess, and a Baha’i minister appeared at meetings).” Both Alito and Kennedy suggest that it would have been more pleasant, all around, if there had been more variety, but are willing to call the lack of diversity, in Alito’s words, “an honest mistake,” with no “discriminatory intent.” Town officials apparently just didn’t realize that there were clergy members in the area who weren’t Christian. As Kennedy put it in a footnote, although “each lived in the Town more than thirty years, neither was personally familiar with any mosques, synagogues, temples, or other non-Christian places of worship within the Town.” What we see and notice, standing in the front of the room, can be ascribed to politeness, too—until people fade into invisibility.
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