The Religious Geography of Town of Greece v. Galloway

45 Pages Posted: 6 Apr 2015 Last revised: 19 May 2015

See all articles by Paul Horwitz

Paul Horwitz

University of Alabama School of Law

Date Written: April 5, 2015

Abstract

Law and religion scholarship generally focuses on the temporal aspects of American religion and the law of the Religion Clauses, not their spatial aspects. This article argues that church-state legal scholarship ought to take a spatial turn. A substantial body of non-legal scholarship has emphasized the influence of space and place on American religion and religious history. "The lens of geography," observes a leading text, "provides an effective framework for analyzing the connection of religious belief to other spheres of thought and action at diverse scales." Geography thus offers the potential for a richer understanding of American religious pluralism and of church-state law itself. The vehicle for this argument is a critical analysis of the Supreme Court's recent judgment in Town of Greece v. Galloway, which reaffirmed the constitutionality of legislative prayer, even when delivered in front of a town board rather than before Congress or a state legislature.

Part I offers a critical summary of the opinions in Town of Greece v. Galloway. Part II compares Justice Kennedy's opinion for the Court in Town of Greece with the principal dissent, written by Justice Kagan. It argues that despite their differences, the two opinions have much in common. Each presents a monistic, sweeping vision of American religious pluralism, suggesting that there is a single "correct" definition of religious pluralism -- one that is national in scope and uniform in application, despite the nation's incredible cultural and geographical diversity. Ultimately, for the reasons offered below, both visions of American religious pluralism are thin, unsatisfying, and unlikely to last.

Part III provides an introduction to religious geography, with its focus on spatial rather than temporal/historical or abstract theoretical approaches to the story of American religious pluralism. It turns the geographical lens on two aspects of Town of Greece. First, it provides an account of the importance of regions in American religious life, and the varied strategies employed by different regions in dealing with religious pluralism. It concludes that efforts -- like those of Justices Kennedy and Kagan -- to define or describe American religious pluralism in monistic terms, and then build Establishment Clause law on the basis of that monistic account, are mistaken and inevitably unstable. Rather, in the words of one author, "American religious pluralism can be understood as in fact consisting of an array of geographically defined pluralisms."

Second, it examines what Richard Schragger has called the "role of the local" in understanding American church-state law in general, and Town of Greece in particular. This section focuses on one striking and unfortunate aspect of Town of Greece: the majority's conclusion that the town acted reasonably when it limited its list of potential prayer-givers to those living within the town's borders. This limitation ignored the significance of the Jewish synagogues located close to the town but outside its official borders. The article argues that the town's (and the Court's) approach to this question should have been sensitive to local facts and conditions, not transfixed by a set of imaginary lines. Somewhat ironically, the opinion in this case that is most conscious of localism is Justice Alito's concurrence, which emphasizes the "informal, imprecise" practices of "small and medium-sized units of local government" and insists that courts must cut these units some slack in evaluating their practices, lest they be foreclosed from offering legislative prayers at all. For all the reasons that Alito suggests, the Court should have done exactly the opposite of what he wanted, and invalidated the town's prayer practices. But that particular conclusion is less important than the general point: geography, including religious geography, matters, and should be an important part of church-state law and scholarship.

Keywords: Town of Greece v. Galloway, legislative prayer, Establishment Clause, religious pluralism, law and geography, religious geography, Marsh v. Chambers, localism, regionalism

Suggested Citation

Horwitz, Paul, The Religious Geography of Town of Greece v. Galloway (April 5, 2015). Supreme Court Review, Forthcoming; U of Alabama Legal Studies Research Paper No. 2590073. Available at SSRN: https://ssrn.com/abstract=2590073

Paul Horwitz (Contact Author)

University of Alabama School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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