June 17, 2005
Yeah, I Don't Feel Disparaged At All
June 17, 2005 12:39 AM
Amber Taylor raises Judge Wilkinson's decision in Simpson v. Chesterfield Co. as one that she finds problematic. In comments to the post, Will Baude says that in applying Marsh, wherein a single chaplain was found constitutional, there's no reason to find having a group of chaplains who can be selected only from monotheistic religions unconstitutional.
I'm inclined to Amber's position that there's a difference between having the result be exclusion and having the intent be exclusion. As long as the single Nebraska chaplain isn't required to be of any particular faith, all religions presumably are equally eligible for the position whenever it opens up. In Chesterfield, by contrast, some religions never ever are eligible.
But I also have to admit to some sense of personal offense at their writing the policy such that one must be monotheistic to qualify. If they wanted to keep out the cranks and not have things get too absurd, it would be much more appropriate to have said that one must lead a religious community of a certain size, so that when Hindus take over Chesterfield, a priest would be eligible to lead the prayer. Or when the Wiccans constitute a majority, their duly selected representative could show up. That would be a policy based on practicality rather than a bias toward particular religions.
To say that only monotheistic religions possibly can be acceptable for leading prayer is an "indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief" -- which Marsh doesn't permit. It explicitly disparages polytheistic religions as unfit for participation in what, according to Wilkinson's opinion, "is designed to foster widespread participation throughout the County."
To be sure, one could announce the two cases distinguishable on the grounds you suggest. Indeed, lower courts are almost always able to do so in any case where they don't like the precedent that they are oathbound to follow. If the contention is that this is what lower court judges should do when they encounter precedents they don't like, that is most interesting.
On the merits, what limits do you think a locality (after Marsh) should be allowed to impose on the invocation that they have for their own government members? This is not, after all, a public forum; it is a service for the city council.
I thought I was making an argument on the merits, and following Marsh rather than trying to distinguish it. If I wanted to distinguish from Marsh, I would have attempted to find a way in which a city council differs from a legislature such that while the legislature can have invocations, a council cannot. Or I would have claimed that there's a difference between invocations given by a state-employed chaplain and those given by various invited representatives of a town's religious bodies.
The challenge in Marsh was to having invocations; I am not saying the city council shouldn't have invocations. I am saying that a rule in which only representatives of a particular type of faith are considered suitable for giving the invocation is an exclusionary rule that acts as a state endorsement of monotheism, or at least a state disparagement of polytheism.
On the merits, after Marsh, I think no form of government can make a rule that limits invocation givers to "a divinity that is consistent with the Judeo-Christian tradition." Wilkinson's opinion says, "Most recently, our decision in Wynne v. Town of Great Falls found a Town Councilís practice explicitly advancing exclusively Christian themes to be unconstitutional." Why, then, is it OK to advance exclusively monotheistic themes? I find Wilkinson's opinion to be highly dismissive of the impact of declaring certain faiths to be ineligible due to the content of their beliefs on the sense of inclusion and participation of adherents of those faiths.
But Marsh featured "a rule in which only representatives of a particular type of faith are considered suitable for giving the invocation", indeed in which only the representative of a single faith was considered suitable!
Wilkinson's decision is not about the content of the invocation-- which surely was constitutional after Marsh-- but about the identity of the invoker, right?
Right, the decision is about how inclusive the County is in determining who is eligible to give the invocation. Wilkinson considers it more inclusive to have representatives of multiple monotheistic faiths included, and those of polytheistic faiths explicitly excluded, than to have a single chaplain.
However, my understanding is that the Nebraska legislature never made a rule saying that only Presbyterian ministers are eligible; rather, a Presbyterian minister is who they picked in 1965, and he hadn't screwed up so they kept him on. He had been preceded by ministers from the church of Jesus Christ of Latter Day Saints and Methodist Episcopalian church. (I believe Nebraska stopped having single chaplain for the legislature in the 1980s and instead has a staff member called a "chaplain coordinator.") Having a single chaplain at a time is a perfectly practical preference; it ensures continuity, reliability, etc., and as long as all religious groups are equally eligible for the position, the policy does not advance any of them.
I understand that the quote from Marsh about advancing or disparaging referred to the content of the prayers, but I think it is applicable to the policy of choosing chaplains as well, and if Nebraska had declared a single denomination eligible for the chaplaincy, that likely would have caused its policy to be deemed unconstitutional even if the representative of that denomination gave unexceptionable prayers.