1. No category

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THE DEMOCRACY WE LEFT BEHIND IN
GREECE AND MCCUTCHEON
CIARA TORRES-SPELLISCY*
INTRODUCTION
Boundary maintenance is one of the key roles the U.S. Supreme
Court plays in our common-law legal system. The Supreme Court
used to regularly police the line between political and economic
spheres and the line between Church and State.1 The Court in 2014
abandoned both posts. As evidenced by McCutcheon v. FEC,2 a case
that follows in the footsteps of 2010’s Citizens United v. FEC,3 the
Supreme Court is not protecting democracy from creeping oligarchy
served up one campaign contribution at a time.4 As evidenced by
 Copyright © 2014 by Ciara Torres-Spelliscy, Associate Professor at Stetson
University College of Law and Brennan Center Fellow. A.B., Harvard University; J.D.,
Columbia Law School. The author would like to thank Professors Eric J. Segall, Louis J.
Virelli, III, Glynn Torres-Spelliscy, Guy-Uriel Charles, Dawn Johnsen, William P.
Marshall, Daniel Tokaji, and all the participants in the American Constitution Society
scholars meeting for their feedback, as well as Stetson Law Research Assistants Cherylin
Blitch, Courtney Chaipel, and Elizabeth Harbaugh and Stetson Law Librarian Sally
Waters for their help researching this piece.
1 Robert L. Cord & Howard Ball, The Separation of Church and State: A Debate,
1987 UTAH L. REV. 895, 919 (1987) (“[T]he Court has carved out a fundamental principle
in the area of establishment of religion: separatism. Based on a view of Madisonian and
Jeffersonian thought, the Court majorities have tried to develop working concepts to
implement the principle that both religion and government function best if each remains
independent of the other.” (internal citations omitted)); see also Examining a
Constitutional Amendment to Restore Democracy to the American People: Hearing Before
the U.S. Senate Judiciary Committee, 113th Cong. (2014) (statement of Professor Jamin B.
Raskin, Director, Program on Law and Government, American University Washington
College of Law), available at http://www.judiciary.senate.gov/imo/media/doc/06-0314RaskinTestimony.pdf (“[T]wo essential walls . . . protect the integrity of political
democracy. . . . [First is] Jefferson’s ‘wall of separation’ between church and state. . . . The
second one is the wall that we have built brick-by-brick in federal and state law for more
than a century which separates plutocratic money from democratic politics.”); Thomas I.
Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 905 (1963)
(“The character of the individual rights and social values at stake, the kind of forces loosed
in prescribing limitations, the necessity for support by law, especially under conditions of
mass democracy, all demand that the Court play a positive, indeed almost an aggressive
role in this area.”).
2 134 S. Ct. 1434 (2014).
3 558 U.S. 310 (2010).
4 See Burt Neuborne, Symposium: Welcome to Oligarchs United, SCOTUSBLOG
(Apr. 3, 2014, 11:17 AM), http://www.scotusblog.com/2014/04/symposium-welcome-to-
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Town of Greece v. Galloway,5 the Supreme Court is not protecting
democracy from creeping theocracy served up one public prayer at a
time.6 In two areas of First Amendment law—the Speech Clause and
the Establishment Clause—the Court feigns neutrality when it is
really picking sides, and the side that the Court picks is the one that
already has the most power.7 This short essay will explore how the
modern Court’s Establishment Clause jurisprudence parallels its
campaign finance jurisprudence and how both have the potential to
create a privileged class and a second class.
In Greece, the Court found years of officially-sanctioned
Christian prayers at governmental meetings constitutionally
unobjectionable.8 By so doing, the majority was willfully blind to the
thumb the Court placed on the scale in favor of Christianity and the
political alienation this decision might engender for every religious
minority who wishes to participate actively in local government.
Despite America’s religious diversity, one possible explanation for
this is that the majority of the Court might believe Christianity’s
predominant role in American political life is natural. While roughly
75 percent of Americans self-identify as Christian,9 significantly, the
remaining roughly 25 percent, or over 75 million people, do not.10
oligarchs-united/ (“There is no ignoring the fact that American democracy is now a wholly
owned subsidiary of Oligarchs, Inc.”).
5 134 S. Ct. 1811 (2014).
6 See Frank G. Kirkpatrick, The Hollowness of Public Prayer, HUFFINGTON POST
(May 15, 2014, 2:06 PM), http://www.huffingtonpost.com/frank-g-kirkpatrick/thehollowness-of-public-_b_5330236.html (criticizing the Court’s decision in Greece because
“[p]ermitting prayer at such public gatherings disenfranchises those who come before
them to do public business who may have no religion or a different religion from the one
being invoked by the prayer”).
7 See Francis Canavan, The Pluralist Game, LAW & CONTEMP. PROBS., Spring 1981,
at 23, 27 (“[T]he First Amendment is invoked on the absolute necessity of separating
Church and State. . . . [H]owever, the size and (perhaps even more important) the
financial power of the groups involved, and the importance that both sides attach to the
values at stake, have more to do with the way in which the dispute is settled than does any
appeal to principle.”).
8 See Town of Greece, 134 S. Ct. at 1813 (“Since 1999, the monthly town board
meetings in Greece, New York, have opened with . . . a prayer given by clergy selected
from the congregations listed in a local directory . . . . [N]early all of the local
congregations are Christian; thus, nearly all of the participating prayer givers have been
too.”).
9 See
Church Statistics and Religious Affiliations, PEW RES. CTR.,
http://religions.pewforum.org/affiliations (last visited Sept. 6, 2014) (survey, conducted
from May 8 to August 13, 2007, finding that 75.5% of Americans are Christian). The
author is excluding Mormons and Jehovah’s Witnesses—two indigenous American sects of
Christianity—from this total. If they are included, then the Christian total jumps to 77.9%.
Id.
10 Id. According to this study, approximately twenty-five percent of Americans are
either not affiliated with a religion or are members of a non-Christian faith such as Islam,
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The Court’s theological blind spot is reminiscent of another blind
spot the Justices have demonstrated in its campaign finance
jurisprudence: Justices in the conservative majority seem
unconcerned that the Court is placing a thumb firmly on the scale in
favor of the wealthy, as it frees them to spend more money in
politics.11 The Court’s five-person majority in campaign finance cases
since 2006 appears unbothered by the rich’s possessing more political
power in America. While campaign finance cases are clearly about
one aspect of the democratic political process—namely, the money
backing candidates—many Establishment Clause cases also have
profound political implications.12 In both areas of the law, the Court is
risking Lochnerian mistakes.13
I
THE SPEECH CLAUSE & CAMPAIGN FINANCE
For over a century, Congress and several states have tried to
keep private money from swamping the democratic process through
various campaign finance laws.14 Opponents of campaign finance
Judaism, or Hinduism, among others. Sixteen percent of Americans are not affiliated with
any church or religion. See also Eric J. Segall, Mired in the Marsh: Legislative Prayers,
Moments of Silence, and the Establishment Clause, 63 U. MIAMI L. REV. 713, 735 (2009)
(“[T]he fact of the matter, as demonstrated by the many lawsuits that are filed, is that
many people who do not believe in God are offended when the government begins its
official business with a prayer.”).
11 See Colleen Flaherty, Supreme Court Ruling Gives Wealthy Individuals More Power
in Elections, EDUCATION VOTES, http://educationvotes.nea.org/2014/04/09/supremecourt-ruling-gives-wealthy-individuals-more-power-in-elections/ (Apr. 9, 2014) (“[T]he
U.S. Supreme Court dealt a blow to fair elections with a decision that will increase the
already enormous influence wealthy individuals have over democracy in America.”);
Dahlia Lithwick, Justice Roberts Hearts Billionaires, SLATE (Apr. 2, 2014, 5:28 PM),
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/mccutcheon_v_fec_
(discussing
Chief
campaign_finance_decision_justice_roberts_doesn_t_believe.html
Justice Roberts’s apparent obliviousness to Americans’ concerns about the obvious
corrupting potential of large campaign contributions).
12 See, e.g., County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573,
626 (1989) (O’Connor, J., concurring) (noting that the government displaying the symbols
of a particular religion runs the risk of conveying that nonadherents are “not full members
of the political community”); Lynch v. Donnelly, 465 U.S. 668, 687–88 (1984) (O’Connor,
J., concurring) (“The Establishment Clause prohibits government from making adherence
to a religion relevant in any way to a person’s standing in the political community.”).
13 See David E. Bernstein, Lochner’s Legacy’s Legacy, 82 TEX. L. REV. 1, 2–3 (2003)
(discussing the widely accepted view of Lochner as an example of judicial error and noting
that “[a]voiding Lochner’s mistake is the central obsession of modern constitutional law.
Supreme Court Justices are at pains to deny that their opinions declaring laws
unconstitutional are Lochnerian, while dissenting Justices use Lochner as an epithet to
criticize their colleagues.” (internal quotations omitted)).
14 See, e.g., Anthony Corrado, Introduction to Money and Politics: A History of
Federal Campaign Finance Law, in CAMPAIGN FINANCE REFORM: A SOURCEBOOK 25,
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reform argue that such regulations violate the Speech Clause of the
First Amendment, which bars Congress (and, in conjunction with the
Fourteenth Amendment, the states) from abridging freedom of
speech.15 Here, I will focus on how the Court has interpreted the
Speech Clause as it relates to the regulation of money in politics. In
short, the Supreme Court generally allowed regulation of money in
politics until 2006, when the conservative majority on the Roberts
Court radically changed course.
As a textual matter, the Constitution is silent about campaign
finance. With the notable exception of an absolute constitutional bar
on limiting expenditures by individuals, starting with Buckley v.
Valeo, from 1976 to 2006, the general rule of thumb was that the
Supreme Court upheld campaign finance regulations if they were
properly tailored to address either an important state interest (like
providing voters information)16 or a compelling state interest (like
fighting political corruption or its appearance).17 During this time, the
27
(Anthony
Corrado
et
al.
eds.,
1997),
available
at
http://fackler.webhost.utexas.edu/gov370-money/brookings/chap2.pdf
(“Roosevelt . . .
include[d] a call for campaign finance reform in his annual messages to Congress in 1905
and 1906. This spurred the formation of the National Publicity Law Organization (NPLO),
a citizens’ group dedicated to lobbying for the regulation of political finance and public
disclosure of political spending.”); Adam Winkler, “Other People’s Money”: Corporations,
Agency Costs, and Campaign Finance Law, 92 GEO. L.J. 871, 883 (2004) (referencing
Kentucky’s 1891 ban on corporate money in state elections); FED. ELECTION COMM’N,
PUBLIC FUNDING OF PRESIDENTIAL ELECTIONS 1 (rev. ed. 2014), available at
http://www.fec.gov/pages/brochures/public_funding_brochure2012.pdf (“Legislation for
public financing of Presidential candidates was first proposed . . . in 1907. In his State of
the Union message that year, President Theodore Roosevelt recommended public
financing of federal elections and a ban on private contributions.”).
15 Gitlow v. New York, 268 U.S. 652, 666 (1925) (“[W]e . . . assume that freedom of
speech and of the press—which are protected by the First Amendment from abridgment
by Congress—are among the fundamental personal rights and ‘liberties’ protected by the
due process clause of the Fourteenth Amendment from impairment by the States.”);
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (“The First Amendment declares that
Congress shall make no law respecting an establishment of religion . . . . The Fourteenth
Amendment has rendered the legislatures of the states as incompetent as Congress to
enact such laws.”).
16 See Buckley v. Valeo, 424 U.S. 1, 66–67 (1976) (“[D]isclosure provides the
electorate with information as to where political campaign money comes from and how it
is spent by the candidate in order to aid the voters in evaluating those who seek federal
office.” (footnote omitted) (internal quotation marks omitted)); see also Citizens United v.
FEC, 558 U.S. 310, 369 (2010) (“[T]he public has an interest in knowing who is speaking
about a candidate shortly before an election. . . . [T]he informational interest alone is
sufficient to justify application of § 201 to these ads . . . .”).
17 See FEC v. Nat’l Conservative PAC, 470 U.S. 480, 496–97 (1985) (“[P]reventing
corruption or the appearance of corruption are the only legitimate and compelling
government interests thus far identified for restricting campaign finances.”).
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Supreme Court upheld corporate contribution bans,18 contribution
limits,19 public financing,20 certain expenditure bans,21 and disclosure.22
Of course, there were some other exceptions that proved the rule.23
On the whole, these campaign finance cases allowed for the
moderation of money in politics. During most of this period (19762002), both the upper class and the middle class had a comparable
ability to give a few hundred dollars (up to a $1000 cap per election)
to federal candidates of their choice.24 Truly, one did not have to be a
millionaire to make an impact. That was then; this is now.
In 2006, the personnel on the Court changed.25 Gone were Chief
Justice Rehnquist and Justice O’Connor; replacing them were Chief
Justice Roberts and Justice Alito.26 Justice O’Connor had provided
swing votes to uphold campaign finance regulations.27 Her absence
18 FEC v. Beaumont, 539 U.S. 146, 149 (2003) (upholding a ban on corporations
contributing directly to federal candidates as applied to nonprofit advocacy corporations).
19 Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 381–82, 397–98 (2000) (upholding
Missouri’s law limiting individual contributions).
20 Buckley, 424 U.S. at 85–86 (1976) (per curiam) (upholding the constitutionality of
public financing laws).
21 See McConnell v. FEC, 540 U.S. 93 (2003) (upholding BCRA’s “soft-money” ban);
Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990) (upholding the
constitutionality of a ban on corporate expenditures from general corporate treasury funds
in support of or in opposition to candidates in state elections).
22 McConnell, 540 U.S. at 197, 201 (upholding the disclosure requirement of the
Bipartisan Campaign Reform Act in light of Buckley); Buckley, 424 U.S. at 60–61
(upholding the disclosure requirement of the Federal Election Campaign Act).
23 Compare McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995) (“Ohio has
not shown that its interest in preventing the misuse of anonymous election-related speech
justifies a prohibition of all uses of that speech.”), and First Nat’l Bank of Boston v.
Bellotti, 435 U.S. 765, 776 (1978) (“[T]he question must be whether § 8 abridges
expression that the First Amendment was meant to protect. We hold that it does.”), with
McConnell, 540 U.S. 93 (upholding much of the federal Bipartisan Campaign Reform
Act), Beaumont, 539 U.S. at 151–53 (upholding the federal Tillman Act), Nixon, 528 U.S.
at 381–82 (upholding state contribution limits), and Buckley, 424 U.S. at 143 (upholding
much of the Federal Election Campaign Act, including its limits on individual
contributions, its disclosure and reporting provisions, and its public financing scheme).
24 See MICHAEL J. GOFF, THE MONEY PRIMARY: THE NEW POLITICS OF THE EARLY
PRESIDENTIAL NOMINATION PROCESS 7 (2004) (“Set at $1,000 per candidate per federal
election, this contribution limit remained unchanged from 1976 to 2002 . . . .”).
25 See Linda Greenhouse, Change and Continuity on the Supreme Court, 25 WASH. U.
J.L. & POL’Y 39, 39 (2007) (“When two new Justices joined the Supreme Court during the
2005 term, the longest period of membership stability in the Court’s modern history came
to an end. The eleven years without personnel change, from 1994 until 2005, made this the
longest natural court . . . .” (internal quotation marks omitted)).
26 Adam Liptak, Court Under Roberts Is Most Conservative in Decades, N.Y. TIMES
(July 24, 2010), http://www.nytimes.com/2010/07/25/us/25roberts.html.
27 Adam Liptak, Alito’s Way: Changes on the Court Usher in a Reversal of Course on
Campaign Finance Reform, COLUM. L. SCH. MAG., Fall 2008, at 44, available at
https://www.law.columbia.edu/media_inquiries/news_events/2008/november2008/alito_ma
g.
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left Justice Alito to create a five-vote conservative majority that has
slowly dismantled one aspect of campaign finance after another.28
This all happened against a backdrop of rising income and wealth
inequality in the 1976-2014 period.29
Gone are the days when the Supreme Court worried about “the
poorly financed causes of little people.”30 Two cases are particularly
noteworthy when considering the Roberts Court’s empathy for the
wealthy: Davis v. FEC31 and McCutcheon v. FEC.32 In Davis, the
Court struck down the “Millionaires’ Amendment,” a provision of
federal law that was triggered once a candidate spent $350,000 on his
or her campaign.33 In Davis, Justice Alito wrote for the majority that
wealth was no different than celebrity: “Different candidates have
different strengths. Some are wealthy; others have wealthy supporters
who are willing to make large contributions. Some are celebrities;
some have the benefit of a well-known family name.”34
In McCutcheon, the Supreme Court struck down a biennial limit
that only applied to those who made $123,200 in political
contributions.35 And curiously, in McCutcheon, Justice Roberts
equated spending money with voting.36 The laws at issue in both
Davis and McCutcheon only applied to the richest Americans who
could afford to spend $350,000 or $123,200, respectively, on politics.37
After McCutcheon, affluent individuals can spend over $3.5 million to
28 See David Axelman, Citizens United: How the New Campaign Finance
Jurisprudence Has Been Shaped by Previous Dissents, 65 U. MIAMI L. REV. 293, 293–94
(2010) (noting that since Chief Justice Roberts and Justice Alito joined the Court, “the
Court has effectively channeled the dissents of its current and former members in creating
a new majority position that is centered on a robust protection of free speech rights”).
29 See Thomas Piketty & Gabriel Zucman, Capital Is Back: Wealth-Income Ratios in
Rich Countries 1700-2010, 129 Q.J. ECON. 1255, 1255 (2014) (finding in the United States,
United Kingdom, Germany, and France “[i]n effect, today’s ratios appear to be returning
to the high values [of 600-700%]”).
30 Martin v. City of Struthers, 319 U.S. 141, 146 (1943).
31 554 U.S. 724 (2008).
32 134 S. Ct. 1434 (2014).
33 Davis, 554 U.S. at 729, 738.
34 Id. at 742.
35 McCutcheon v. FEC, 134 S. Ct. 1434, 1462 (2014).
36 See McCutcheon, 134 S. Ct. at 1440–41 (2014) (“Citizens can exercise that right [to
participate in electing our political leaders] in a variety of ways: They can run for office
themselves, vote, urge others to vote for a particular candidate, volunteer to work on a
campaign, and contribute to a candidate’s campaign.”).
37 According to the U.S. Census Bureau, in 2012, those with incomes of $191,156 were
in the top 5% of U.S. incomes. U.S. CENSUS, HISTORICAL INCOME TABLES:
HOUSEHOLDS, TABLE H-1. INCOME LIMITS FOR EACH FIFTH AND TOP 5 PERCENT ALL
RACES, http://www.census.gov/hhes/www/income/data/historical/household/ (2014) (last
visited Sept. 29, 2014). One would need an even higher income than this threshold to
afford to spend $123,200 or $350,000 in after tax dollars.
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fund a candidate from a single party in every federal race, or over $7
million to fund all federal candidates from both major parties.38
The recent spate of campaign finance cases since 2006 has left a
mishmash of regulations.39 For example, individuals can give to as
many federal candidates as they want, so long as they give at most
$2600 to any single candidate in an election cycle.40 Corporations can
make unlimited independent expenditures, but are banned from
giving a dime to a federal candidate.41 In the post-Buckley era, the
Supreme Court cannot make up its collective mind whether to
maintain segregated spheres for the economy and politics, but the
present majority seems poised to smash what’s left of the barrier
betwixt the two.
II
THE ESTABLISHMENT CLAUSE & POLITICAL OUTSIDERS
The Court has also traditionally served as a gatekeeper in
holding the line between Church and State as it interpreted the
Establishment Clause case by case.42 While the text of the
Constitution is silent on campaign finance, it is actually refreshingly
clear about non-establishment of religion. The Establishment Clause
states, “Congress shall make no law respecting an establishment of
38 See Andy Kroll, The Supreme Court Just Gutted Another Campaign Finance Law.
Here’s
What
Happened,
MOTHERJONES,
http://www.motherjones.com/politics/2014/03/supreme-court-mccutcheon-citizens-united
(Apr. 2, 2014, 10:36 AM) (“[After McCutcheon] a single donor can now contribute as
much as $3.5 million, to be divvied up between candidates, PACs, and political parties.”);
Jennifer Reingold, McCutcheon’s Winners: The Wealthy, Political Parties, and - Of Course
- Junk Mail Providers, FORTUNE (Apr. 2, 2014), http://fortune.com/2014/04/02/
mccutcheons-winners-the-wealthy-political-parties-and-of-course-junk-mail-providers/
(“There is a snowball effect. If it’s all added up, you can give over $3.5 million to your
side . . . .” (quoting Tara Malloy)).
39 See Paul Blumenthal & Ryan Grim, After Today’s Supreme Court Ruling, Here’s
How All This Will End, HUFFINGTON POST (Apr. 2, 2014, 3:30 PM),
http://www.huffingtonpost.com/2014/04/02/supreme-court-mccutcheondecision_n_5077549.html (“What’s left [after McCutcheon] is an incoherent system in
which donors can make unlimited contributions anonymously to certain entities engaging
in politics, but must attach their name to unlimited giving to other groups, and are blocked
from making unlimited contributions directly to candidates.”).
40 FED.
ELECTION COMM’N, CONTRIBUTION LIMITS FOR 2013–2014,
http://www.fec.gov/info/contriblimitschart1314.pdf (last visited Sept. 12, 2014).
41 See FEC v. Beaumont, 539 U.S. 146 (2003) (upholding the statutory ban on direct
corporate contributions).
42 See John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment
Clause, 100 MICH. L. REV. 279, 286 (2001) (“The origins and purposes of the Virginia
statute were adopted for the Establishment Clause, and on that borrowed
foundation, Everson began the modern edifice of separation of church and state. For half
a century, the Supreme Court followed Everson's lead.”)
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religion . . . .”43 The Clause was included in the First Amendment at
the urging of James Madison and Thomas Jefferson,44 among others,
as a reaction to colonial experiences of state-sponsored religion,45
which proved odious to many.46
The purpose of the Establishment Clause is simple: preventing
governmental imposition of theological orthodoxies. As the Supreme
Court explained in 1963 when reviewing Pennsylvania’s requirement
that public school children recite the Lord’s Prayer:
[T]he teachings of history [are] that powerful sects or groups might
bring about a fusion of governmental and religious functions . . . to
the end that official support of the State or Federal Government
would be placed behind the tenets of one or of all orthodoxies.
This the Establishment Clause prohibits.47
For decades, Establishment Clause jurisprudence embraced a
distinctly inclusive vision that America is “a society where a
constitutional wall separates the State from the Church.”48 Or as
Justice Douglas admonished, the First Amendment’s “philosophy is
43
U.S. CONST. amend. I.
See Daniel L. Dreisbach & John D. Whaley, What the Wall Separates: A Debate on
Thomas Jefferson’s “Wall of Separation” Metaphor, 16 CONST. COMMENT. 627, 628 (1999)
(“In the twentieth century, Jefferson’s ‘wall’ has profoundly influenced discourse and
policy on church-state relations. . . . [T]he judiciary has embraced the metaphor, adopting
it not only as an organizing theme of church-state analysis, but also as a virtual rule of
constitutional law.”).
45 See Engel v. Vitale, 370 U.S. 421, 427 (1962) (“[W]hen some of the very groups
which had most strenuously opposed the established Church of England found themselves
sufficiently in control of colonial governments in this country to write their own prayers
into law, they passed laws making their own religion the official religion of their respective
colonies.”).
46 Everson v. Bd. of Educ., 330 U.S. 1, 10–11 (1947) (“[Religious minorities] were
persecuted because they steadfastly persisted in worshipping God only as their own
consciences dictated. . . . The imposition of taxes to pay ministers’ salaries and to build and
maintain churches and church property aroused their indignation. It was these feelings
which found expression in the First Amendment.”); but see Vincent Phillip Muñoz, The
Original Meaning of the Establishment Clause and the Impossibility of its Incorporation, 8
J. CONST. L. 585, 586 (Aug. 2006) (“Among contemporary scholars and jurists, in fact, less
agreement exists now about the Establishment Clause’s original meaning than when the
Supreme Court . . . decide[d] . . . Everson . . . .”); e.g. Elk Grove Unified Sch. Dist. v.
Newdow, 542 U.S. 1, 50 (2004), abrogated in part on other grounds by Lexmark Intern. Inc.
v. Static Control Components Inc., 134 S. Ct. 1377 (2014) (Thomas, J., concurring) (“[T]he
Establishment Clause is best understood as a federalism provision—it protects state
establishments from federal interference but does not protect any individual right.”).
47 Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963); see also Engel,
370 U.S. at 425 (1962) (“[T]he constitutional prohibition against laws respecting an
establishment of religion must at least mean that in this country it is no part of the
business of government to compose official prayers . . . .”).
48 Seminole Tribe v. Florida, 517 U.S. 44, 96 (1996), abrogated in part on other grounds
by Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006).
44
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that the atheist or agnostic—the nonbeliever—is entitled to go his
own way. The philosophy is that if government interferes in matters
spiritual, it will be a divisive force.”49
That inclusive vision was undermined by Greece, which reveals
that governmental neutrality towards religion is in the eye of the
judicial beholder. At issue in Greece was the invocation of sectarian
Christian prayers at town meetings where government business was
conducted.50 Plaintiffs protested that this was an unconstitutional
establishment of religion.51 The plaintiffs won at the Second Circuit,52
but lost where it mattered, at the Supreme Court.53 The plaintiffs’
case was a heavy lift because the 1983 case of Marsh v. Chambers
upheld legislative prayer in Nebraska.54 However, as explained below,
the Greece plaintiffs had a plausible case because during the thirtyone years since Marsh, the Court had cut back on where religion can
encroach on civic life.55 Moreover, the situations in Greece and Marsh
were also factually distinguishable. In Greece, ordinary citizens
petitioning for governmental action were subjected to the prayer,
which is far more troubling than the antecedent scenario upheld in
Marsh in which peer legislators were the primary audience of the
prayer.
49
Engel, 370 U.S. at 443 (1962) (Douglas, J., concurring).
See David Masci, In Brief: Supreme Court Revisits Legislative Prayer in Town of
Greece v. Galloway, PEW RESEARCH CTR. RELIGION & PUB. LIFE PROJECT (Nov. 4,
2013),
http://www.pewforum.org/2013/11/04/in-brief-supreme-court-revisits-legislativeprayer-in-town-of-greece-v-galloway/ (“The town is governed by a board that, under state
law, has executive, legislative and administrative authority. Since 1999, the town board has
opened its monthly sessions with a prayer.”).
51 Town of Greece v. Galloway, 134 S. Ct. 1811, 1817 (2014) (“[Plaintiffs] Galloway
and Stephens . . . alleged that the town violated the First Amendment’s Establishment
Clause by preferring Christians over other prayer givers and by sponsoring sectarian
prayers, such as those given ‘in Jesus’ name.’” (quoting Galloway v. Town of Greece, 732
F. Supp. 2d 195, 203 (W.D.N.Y. 2010))).
52 Galloway v. Town of Greece, 681 F.3d 20, 30 (2d Cir. 2012).
53 Town of Greece, 134 S. Ct. at 1828 (“The town of Greece does not violate the First
Amendment by opening its meetings with prayer that comports with our tradition and
does not coerce participation by nonadherents.”).
54 Marsh v. Chambers, 463 U.S. 783, 793 (1983); see also Lyle Denniston, Argument
Recap: Marsh’s Demise, or its Renewal?, SCOTUSBLOG (Nov. 6, 2013, 2:32 PM),
http://www.scotusblog.com/2013/11/argument-recap-marshs-demise-or-its-renewal/
(“[Marsh] upheld prayers before meetings of a state legislature, and it did so just because
the Court said it could trace the practice back to the very first Congress.”).
55 See Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious
Endorsements, 94 MINN. L. REV. 972, 977–78 (2010) (“[L]egislative prayer disputes do not
just say something about legislative prayer. Instead, they provide a unique insight into the
inherent dangers of religious endorsements, and a general warning about the future of the
Establishment Clause. For fifty years, the Court has generally barred government from
endorsing religion.”).
50
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While there was some basic internal consistency to campaign
finance law from 1976 to 2006,56 the Supreme Court has never been of
a single mind when it comes to the Establishment Clause over the
same period.57 The Court has never conclusively stated just how
impermeable or porous the wall between Church and State must be.
Rather, individual Justices have debated what the non-establishment
requirement of the First Amendment means. The Court has split
hairs over crèches, Christmas trees, and Santas.58 It has vacillated on
displays of the Ten Commandments59 and has never come up with a
coherent line on when prayer is allowed in a government setting.60
56 Tony Mauro, Campaign Finance Overview, FIRST AMENDMENT CTR. (Jan. 30,
2010), http://www.firstamendmentcenter.org/campaign-finance-overview (“For more than
30 years after the Watergate scandal in the early 1970s, Congress and the Supreme Court
were mostly on the same page concerning campaign-finance regulation. . . . Most
campaign-finance measures passed by Congress, even though they touched on core
political speech, were upheld by the Supreme Court. That seeming consensus began
unraveling in 2007 . . . .”).
57 See Frank J. Ducoat, Note, Inconsistent Guideposts: Van Orden, McCreary County,
and the Continuing Need for A Single and Predictable Establishment Clause Test, 8
RUTGERS J. L. & RELIGION no. 2, 2007 at 1, 4–5 (“While Lemon has been the primary
test, it has not been exclusive. This instability has produced inconsistent and, in fact,
‘bizarre’ results. Nor has it escaped scathing criticism from commentators, lower courts,
and the Supreme Court itself.”); see also Daniel O. Conkle, Toward a General Theory of
the Establishment Clause, 82 NW. U. L. REV. 1113, 1128–29 (1988) (“The primary thrust of
the Supreme Court’s establishment clause doctrine, then, is to require a careful separation
of religion and government. This separation was first endorsed in Everson . . . . [H]owever,
the Court has permitted government to favor religion in selected circumstances, creating a
contradictory subtheme in its doctrine.”).
58 See County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 621
(1989) (holding that the display of a crèche in county courthouse violated Establishment
Clause, but the display of a menorah did not, because the “government may not engage in
a practice that has the effect of promoting or endorsing religious beliefs. The display of the
crèche in the county courthouse has this unconstitutional effect. The display of the
menorah in front of the . . . Building . . . does not have this effect . . . .”), abrogated by
Town of Greece v. Galloway, 134 S. Ct. 1811, 1821 (2014); Lynch v. Donnelly, 465 U.S.
668, 681 (1984) (holding a city’s inclusion of a nativity scene in its Christmas display is
constitutional).
59 Compare Van Orden v. Perry, 545 U.S. 677, 690 (2005) (holding that displaying a
monument with the Ten Commandments on the Texas State Capital grounds is
constitutional because “the Ten Commandments have an undeniable historical meaning”),
with McCreary County v. ACLU, 545 U.S. 844, 881 (2005) (holding that displays of the
Ten Commandments violated the Establishment Clause because their purpose had been
to advance religion).
60 See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (holding that the
District’s policy permitting student-led, student-initiated prayer at football games violates
the Establishment Clause); Lee v. Weisman, 505 U.S. 577, 587 (1992) (holding that
government involvement creates an unconstitutional “state-sponsored and state-directed
religious exercise in a public school”); Marsh v. Chambers, 463 U.S. 783, 786 (1983)
(upholding the chaplaincy practice of the Nebraska unicameral legislature because “[f]rom
colonial times through the founding of the Republic and ever since, the practice of
legislative prayer has coexisted with the principles of disestablishment and religious
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After Greece, prayer is allowed in the opening of town governmental
meetings, but not at public school graduations61 or football games.62
Justice O’Connor wasn’t just a swing vote to uphold campaign
finance reforms; she was, in retrospect, a swing vote in Establishment
Clause cases to keep Church and State from getting hopelessly
entangled. Justice O’Connor wrote in her concurrence in Lynch v.
Donnelly that government establishment of religion ran the peril of
fostering fractious political constituencies along religious lines:63
The Establishment Clause prohibits government from making
adherence to a religion relevant in any way to a person’s standing
in the political community. Government can run afoul of that
prohibition [by] . . . excessive entanglement with religious
institutions, which may interfere with the independence of the
institutions, give the institutions access to government or
governmental powers not fully shared by nonadherents of the
religion, and foster the creation of political constituencies defined
along religious lines.64
Justice O’Connor continued arguing in Lynch that government
establishment of religion risked creating political outsiders and
insiders. “[Governmental] [e]ndorsement sends a message to
nonadherents that they are outsiders, not full members of the political
community, and an accompanying message to adherents that they are
insiders, favored members of the political community.”65 She returned
to this theme of political alienation along religious lines in County of
Allegheny when she penned, “I agree that the crèche displayed . . .
[in] the seat of county government, conveys a message to
nonadherents of Christianity that they are not full members of the
political community, and a corresponding message to Christians that
freedom”); Engel v. Vitale, 370 U.S. 421, 427 (1962) (invalidating school-sponsored prayer
in public school classrooms).
61 Weisman, 505 U.S. at 599 (holding that the delivery of prayer at graduation
ceremonies violates the Establishment Clause).
62 Santa Fe Indep. Sch. Dist., 530 U.S. at 317 (holding that student-led prayer before
football games violates the Establishment Clause because “[i]t establishes an improper
majoritarian election on religion, and unquestionably has the purpose and creates the
perception of encouraging the delivery of prayer at a series of important school events”).
63 See Erwin Chemerinsky, Symposium: Dismantling the Wall that should Separate
(May
6,
2014,
4:00
PM),
Church
and
State,
SCOTUSBLOG,
http://www.scotusblog.com/2014/05/symposium-dismantling-the-wall-that-should-separatechurch-and-state/ (“O’Connor emphasized that the central purpose of the Establishment
Clause was to keep anyone from feeling like an outsider (or an insider) as to his or her
government. Explicitly Christian prayers before every month’s town board meetings
inevitably make those of other religions feel that they do not belong . . . .”).
64 Lynch v. Donnelly, 465 U.S. 668, 687–88 (1984) (O’Connor, J., concurring).
65 Id. at 688.
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they are favored members of the political community.”66 What
troubled her was the negative democratic impact on citizens of a
crèche in the heart of a governmental building.
Justice O’Connor wasn’t a lone voice in the wilderness.67 In one
of his last years on the bench, Justice Blackmun also urged a robust
separation of Church and State:
The mixing of government and religion can be a threat to free
government, even if no one is forced to participate. When the
government puts its imprimatur on a particular religion, it conveys
a message of exclusion to all those who do not adhere to the
favored beliefs. A government cannot be premised on the belief
that all persons are created equal when it asserts that God prefers
some.68
Thus there was some recognition by the Supreme Court after
Marsh that negative democratic consequences can flow from violating
the separation of Church and State: Those in power can make
political favorites of their co-parishioners. These themes have been
reiterated by the federal circuit courts.69
Seemingly oblivious that not long ago even Catholics like
themselves faced regular discrimination,70 and perhaps taking a cue
from the Solicitor General’s amicus brief in favor of the town,71 in
66 County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 626
(1989) (O’Connor, J., concurring).
67 N ANCY M AVEETY , J USTICE S ANDRA D AY O’C ONNOR : S TRATEGIST ON THE
SUPREME C OURT 35 (1996) (“The record of conference memos reveals that O’Connor
was originally among four justices objecting to both displays on establishment grounds [in
Allegheny] . . . . [Justice] Blackmun’s draft opinion for the Court relied heavily and
explicitly on O’Connor’s reasoning from Lynch . . . . This reaching out to O’Connor was
not in vain . . . .”).
68 Lee v. Weisman, 505 U.S. 577, 606–07 (1992) (Blackmun, J., concurring).
69 See, e.g., ACLU Neb. Found. v. City of Plattsmouth, 358 F.3d, 1020, 1030 (8th Cir.
2004) (“Government establishment of religion causes very real injuries of the sort
experienced by Doe: official alienation, perceived political diminution and pressure to
conform one’s views to those of the majority.”); Doe v. Small, 934 F.2d 743, 775 (7th Cir.
1991), modified, 964 F.2d 611 (7th Cir. 1992) (“[B]y preventing the government from
placing the unmistakable imprimatur of state endorsement upon one religion, we ensure
that members of other religious groups and nonadherents will not be made to feel that
they are outsiders, that their own spiritual or ethical beliefs are disfavored.”).
70 See Jonathan Alter, Six Catholics, Three Jews and Not Much Memory at the
Supreme
Court,
DAILY
BEAST
(May
10,
2014),
http://www.thedailybeast.com/articles/2014/05/10/six-catholics-three-jews-and-not-muchmemory-at-the-supreme-court.html (arguing that the majority Justices have forgotten the
history of religious discrimination against Catholics in the United States).
71 Br. for the United States as Amicus Curae Supporting Pet’r, Town of Greece v.
Galloway,
No.
12-696
at
16
(Aug.
2013),
available
at
http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefsv2/12-696_pet_amcu_usa.authcheckdam.pdf (“The Court in Marsh established that a
legislative prayer practice that has not been exploited to proselytize or advance any one
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Greece, Justice Kennedy writing for the same five-person majority
that deregulated campaign finance departed from the religious
tolerance of the Justice O’Connor concurrences when he wrote:
Ceremonial prayer is but a recognition that, since this Nation was
founded and until the present day, many Americans deem that
their own existence must be understood by precepts far beyond the
authority of government to alter or define and that willing
participation in civic affairs can be consistent with a brief
acknowledgment of their belief in a higher power, always with due
respect for those who adhere to other beliefs. The prayer in this
case has a permissible ceremonial purpose. It is not an
unconstitutional establishment of religion.72
According to the Roberts Court, these prayers are not an
establishment of religion because they are merely ceremonial.73 But
this cannot be correct for those who are praying out of sincerely held
belief. Public prayer serves as a stark marker between the “penitent”
(offering and participating in the prayer) and the “heretic” (refusing
to participate).74 This line may be appropriate in a house of worship,
but it seems incredibly problematic when officially sanctioned in a
governmental setting as the commencement of official state
business.75 The “context matters.”76 The prayers in the case were not
faith or belief, or to disparage another, does not establish religion.” (internal quotation
marks omitted)).
72 Town of Greece, 134 S. Ct. at 1827–28.
73 Id. at 1826; see also Caroline Mala Corbin, Ceremonial Deism and the Reasonable
Religious Outsider, 57 UCLA L. REV. 1545, 1584–85 (2010) (“The Supreme Court has
occasionally recognized the different perspectives that religious outsiders might have. . . .
Nonetheless, the conclusion is still that a reasonable person would not find that the
ceremonial use of God amounts to endorsement of religion over nonreligion or some
religions over others.”).
74 See Micah Schwartzman & Nelson Tebbe, A Prayer for Liberals, SLATE (May 8,
2014),
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/05/the_strange_liberal
_argument_that_thin_skinned_religious_minorities_should.single.html
(“Government
expressions of support for particular religious faiths aren’t dangerous because they injure
the sensibilities of the non-adherents—because they hurt our feelings; they are dangerous
because they establish the framework, the rhetoric, in which persecution and shaming of
non-adherents is made possible.”).
75 See Daren C. Rich, Establishment and Exclusion: Why the Protection of the First
Amendment’s Establishment Clause Should Be Applied to Adults, 28 ST. LOUIS U. PUB. L.
REV. 591, 592 (2009) (“[G]overnment endorsement of religion is inherently coercive. That
is, government endorsement of religion sends the message that religious minorities and
non-believers are outsiders; it creates a divisive environment where minority groups must
choose either to conform to the majority’s religious views or risk ostracism, harassment or
worse.”); Tod Robberson, Supreme Court Misguided if it Thinks Public Prayer Isn’t
NEWS
(May
5,
2014),
Coercive,
DALLAS
http://dallasmorningviewsblog.dallasnews.com/2014/05/supreme-court-misguided-if-itthinks-public-prayer-isnt-coercive.html/ (“[T]he court’s affirmation of public prayer in
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offered at the start of a private ice cream social where they would
have been constitutionally uncontroversial. Thus in Greece, the Court
favors religion in a context where every citizen should feel welcome
to participate in all aspects of the civic gathering.77
Greece is troubling because of what it says about the democratic
values of inclusiveness and equality.78 Yet only the dissents recognize
the democratic norms that are at stake with legislative prayer. Justice
Breyer’s dissent notes: “The question in this case is whether the
prayer practice of the town of Greece . . . promote[d] the ‘political
division along religious lines.’”79 Justice Kagan was even more
pointed in her Greece dissent, where she argued that what is at stake
is the equality of citizenship regardless of faith. Justice Kagan’s
dissent invoked George Washington’s religious tolerance80 and
concluded,
America’s promise in the First Amendment [is]: full and equal
government spaces is a way of imposing the notion of prayer on those who might not
believe that a government meeting is the appropriate place for such an observance to be
held.”).
76 Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (alteration and internal quotation
marks omitted) (quoting Grutter v. Bollinger, 539 U.S. 306, 327 (2003)).
77 The Court did leave the door open to suits that could prove discrimination on the
basis of nonparticipation in the town’s prayers. Town of Greece, 134 S. Ct. at 1826–27
(“Courts remain free to review the pattern of prayers over time to determine whether they
comport with the tradition of solemn, respectful prayer approved in Marsh, or whether
coercion is a real and substantial likelihood.”).
78 See Neil McCarthy, It’s All Greek to Me, HUFFINGTON POST (May 6, 2014),
http://www.huffingtonpost.com/neil-mccarthy/its-all-greek-to-me_1_b_5277041.html
(questioning whether the decision would have been the same had the decade of prayer
been led by a series of imams McCarthy noted, “[The town of Greece] routinely
sanctioned an explicitly Christian prayer in an environment where non-Christian citizenparticipants could easily feel coerced . . . .”); see also Carl H. Esbeck, Town of Greece
Symposium: Can Government Actively Favor a Religious Practice?, SCOTUSBLOG (Sept.
23, 2013, 4:12 PM), http://www.scotusblog.com/2013/09/town-of-greece-symposium-cangovernment-actively-favor-a-religious-practice/ (“The divisiveness within the body politic
that is a proper concern starts when government takes sides in favor of an explicitly
religious practice.”); Eric Segall, Supreme Court Prayer Decision in Greece v. Galloway
BEAST
(Nov.
4,
2013),
Should
Be
Easy,
DAILY
http://www.thedailybeast.com/articles/2013/11/04/supreme-court-prayer-decision-ingreece-v-galloway-should-be-easy.html (“The inherent unfairness that results from overtly
religious exercises at government hearings is easy to see. A Jewish man wearing a
yarmulke trying to obtain a zoning variance immediately after being asked to bow his head
and pray to Jesus may feel like an outsider to the process.”).
79 Town of Greece, 134 S. Ct. at 1841 (Breyer, J., dissenting) (quoting Lemon v.
Kurtzman, 403 U.S. 602, 622 (1971)).
80 Town of Greece, 134 S. Ct. at 1854 (Kagan, J., dissenting) (“[Washington] no less
embraced . . . equality of citizenship. ‘It is now no more,’ Washington said, ‘that [religious]
toleration is spoken of, as if it was by the indulgence of one class of people’ to another,
lesser one. For ‘[a]ll possess alike . . . immunities of citizenship.’”) (citing Letter from
George Washington to Newport Hebrew Congregation (Aug. 18, 1790))).
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membership in the polity for members of every religious
group . . . . When the citizens of this country approach their
government, they do so only as Americans, not as members of one
faith or another. . . . [T]hey should not confront governmentsponsored worship that divides them along religious lines.81
Justice Kagan’s dissent may take its place in the pantheon of
dissents pleading for religious tolerance82 such as Justice Black’s
dissent in Zorach v. Clauson, where he wrote: “The First Amendment
has lost much if the religious follower and the atheist are no longer to
be judicially regarded as entitled to equal justice under law.”83
CONCLUSION
The Supreme Court’s five-person conservative majority is
making the classic blunder of imposing their worldview on the
nation.84 They are doing this in both the Establishment Clause and
the campaign finance cases—mistaking what is “natural” for a set of
policy outcomes they helped create through legal precedent. In both
McCutcheon and Greece, the Court risks fostering second-class
citizenship. In McCutcheon, the class implications are palpable: Most
Americans don’t have a million dollars to spend on politics, and a
single million-dollar donation from one affluent individual to a joint
fundraising committee can displace 1000 individuals giving $1000
each. But Greece also creates the potential for a different kind of
second class citizen: the politically alienated religious minority. Just as
the Court should guard against oligarchy in a nation with growing
inequality,85 the Court should also stand as a bulwark against
81
Id.
See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 718 (2002) (Breyer, J.,
dissenting) (“These [Religion] Clauses embody an understanding, reached in the 17th
century after decades of religious war, that liberty and social stability demand a religious
tolerance that respects the religious views of all citizens . . . .”); Braunfeld v. Brown, 366
U.S. 599, 613 (1961) (Brennan, J. dissenting) (“For religious freedom—the freedom to
believe and to practice strange and, it may be, foreign creeds—has classically been one of
the highest values of our society.”); Zorach v. Clauson, 343 U.S. 306, 319 (1952) (Black, J.,
dissenting) (The Establishment clause was designed “to insure that no one powerful sect
or combination of sects could use political or governmental power to punish dissenters”);
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 655 (1943) (Frankfurter, J.,
dissenting) (“[T]he doctrine of separation of church and state . . . [is] cardinal in the
history of this nation and for the liberty of our people . . . .”).
83 Zorach, 343 U.S. at 320 (Black, J., dissenting).
84 See Fred Wertheimer, Symposium: The Supreme Court and the McCutcheon
(Apr.
4,
2014,
10:44
AM),
Decision,
SCOTUSBLOG
http://www.scotusblog.com/2014/04/symposium-the-supreme-court-and-the-mccutcheondecision/ (“Cloaked in jurisprudence, the five Justices who make up a majority on the
Supreme Court are imposing their ideology and politics on the country.”).
85 See Income Inequality in the United States: Hearing Before the Joint Econ. Comm.,
82
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theocracy, which is intrinsically exclusionary in a country as
religiously diverse as America.86
113th Cong. 49 (2014) (Prepared Remarks of Robert B. Reich), available at
http://www.jec.senate.gov/republicans/public/?a=Files.Serve&File_id=121e5a80-61e2-4c65aa25-a06a1c0887d5 (“[W]e may have a democracy, or we may have great wealth
concentrated in the hands of a few, but we cannot have both.”); Martin Gilens &
Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and
Average Citizens, PERSP. ON POL. (forthcoming Fall 2014), available at
http://www.princeton.edu/~mgilens/Gilens%20homepage%20materials/Gilens%20and%2
0Page/Gilens%20and%20Page%202014-Testing%20Theories%203-7-14.pdf
(“Multivariate analysis indicates that economic elites and organized groups representing
business interests have substantial independent impacts on U.S. government policy, while
average citizens and mass-based interest groups have little or no independent influence.”).
86 See Illinois ex rel. McCollum v. Bd. of Ed. of Sch. Dist. No. 71, 333 U.S. 203, 215–16
(1948) (“Zealous watchfulness against fusion of secular and religious activities by
Government itself, through any of its instruments . . . was the democratic response of the
American community to the particular needs of a young and growing nation, unique in the
composition of its people.”).