Negligent Homicide, Not Murder

November 13, 2013

I have received a number of comments on my blog post the other day re the oral argument in Town of Greece v. Galloway. Some have agreed with my assessment. (And some who wrote about the argument independently made a similar assessment.) Others have said my judgment was far too harsh or unfair. Critics have focused on my assertion that the plaintiffs’ counsel threw atheists under the bus. These critics have insisted that the attorney didn’t have much choice when he indicated the concerns of atheists did not have to be considered in shaping a remedy because he could not have argued that prayer should be eliminated entirely—not if he wanted to win the case.

It is true that given the current composition of Supreme Court, it is unlikely to be receptive to the argument that invocational prayers at local government meetings are per se unconstitutional. That’s the unfortunate reality. So, no, I certainly did not expect plaintiffs’ counsel to try to persuade the Court to eliminate prayers entirely. He cannot be faulted for failing to make an argument with little chance of success.

Moreover, I also think it’s likely that plaintiffs’ counsel, Douglas Laycock, who is a noted constitutional scholar, believes that atheists and polytheists are entitled to equal treatment. Certainly, the organization that brought the case on behalf of the complaining town residents, Americans United for Separation for Church & State, has been, over the years, a tireless and generally effective advocate for freedom of conscience for everyone, including atheists.

That said, Laycock framed his argument in such a way that he was inevitably led to concede that atheists and polytheists are not entitled to equal treatment in the context of official prayers at local government meetings. That is because he decided at a critical junction in the argument to make his principal objection to the prayer practice the fact that the prayers in Greece had been overwhelmingly sectarian. (See page 31 of the transcript of the argument.) Once he focused on that aspect of the prayer practice, he effectively had boxed himself in, and was required to argue that the Court should rule that prayers have to be as nonsectarian as possible and acceptable to the majority—and, in this respect, the beliefs of atheists and polytheists didn’t matter.

My beef is that Laycock did not have to emphasize the sectarian nature of the prayers in Greece and make this the focus of his argument. Significantly, the opinion of the U.S. Court of Appeals for the Second Circuit —the decision that Laycock was defending—did not emphasize the sectarian nature of the prayers. In fact the appellate court expressly rejected a “simple sectarian/nonsectarian approach.” Instead, the appellate court looked at the “totality of the circumstances” in deciding the prayer practice was unconstitutional. The appellate court emphasized three factors which, taken together, rendered the practice unconstitutional: the selection process of the prayer-giver (which favored recognized clergy in the town), the lack of any disclaimer by the town which would indicate to its citizens that the town did not endorse the religious beliefs expressed in the prayers, and the lack of any attempt by the town to assure citizens attending meetings that participation in the prayer was not required. Why didn’t Laycock go with these factors? All three of these factors are relevant to everyone, theist, polytheist, and atheist alike. And I don’t see how this argument is any weaker than an argument that asks the Court to draw a boundary between sectarian and nonsectarian prayers.

So “throwing atheists under the bus” may not have been the best metaphor, because there was probably no desire or intention on Laycock’s part to dismiss the concerns of atheists. I hereby withdraw that characterization. Instead, what Laycock did was bump atheists under the bus in his headlong rush to board the bus at all costs. Regrettably, his recklessness toward the constitutional rights of atheists was both unnecessary and, in all likelihood, unavailing.