Posted by Jay Livingston
Does a justice’s view of the First Amendment’s “establishment clause” depend on which religion is being established?
The First Amendment doesn’t specify any religions as more or less establishable. It just says no establishment.
This week, five conservative justices on the Supreme Court voted to allow a town council in Greece, NY to open their meetings with Christian prayers. These referred to “our Christian faith,” Jesus Christ, and the Resurrection. The justices ruled that these Christian prayers were in perfect accord with the First Amendment. Needless to say, the five justice majority was all Christain (Catholic in fact). The two Jews and two other Catholics dissented. (The Court has no Protestants.)
I wonder what the decision would have been if the town had had a Muslim majority that opened each meeting with “There is no god but Allah, and Mohammed is his prophet,” and the local Christians filed the First Amendment suit.
We don’t know, but on Wednesday, the Times (here) published some data from a study by Lee Epstein of decisions on another First Amendment issue – freedom of speech. In general, the liberal justices were more likely to hold for freedom of speech, conservative justices were for regulation. But the content of the speech mattered. When the speech was conservative, the conservative justices suddenly saw the virtues of civil liberties arguments. The effect also held for the liberal justices but was much weaker.
(Click on the chart for larger view)
Look at Scalia and Thomas (Nino and Silent Clarence). When the speech in question is liberal, they come down on the side of free speech in maybe one case in five. But when the speech is a conservative, they take the speakers’ side in nearly two-thirds of the cases. They are three times more likely to rule for a conservative speaker than for a liberal speaker.
The effect for Alito and Roberts is even stronger; they are four or five times more likley to support free speech for conservatives than for liberals. The number of cases is small – 27 and 24, respectively, compared with 104 for Thomas and 161 for Scalia – but the differences are still statistically significant.
As for my hypothetical Muslim town council and its prayers, a similar study would be impossible because there is no variation. The religion being established is always Christianity. Still, given the evidence on speech cases, those five justices might become downright Jeffersonian in their views of church and state.
How might Scalia respond to the evidence of the justice’s bias in speech cases? Probably the way he responded to evidence of racial bias in death penalty cases. To dismiss it as irrelevant. In McCleskey v. Kemp (1987), he agreed with the argument that social science evidence about Black-White differences in these cases were irrelevant. McCleskey would have to prove bias in his particular case – an impossible hurdle to clear. Of course, if social science data supported a position that Scalia agreed with, he just might make a belated, if temporary, discovery of the virtues of sociological findings.