Via Brian Leiter, there is a suggestion that a major work by a prominent law professor is "misrepresented" in Justice Kennedy's majority opinion in Greece v. Galloway. From the Baltimore Sun (linked by Brian Leiter):
It's not every day that a law professor has his book quoted by the Supreme Court, and so the University of Baltimore's Michael I. Meyerson was understandably intrigued when his 2012 work about the Framers' views on religion made it into Monday's decision on public prayer.
But the plug from Justice Anthony M. Kennedy, who wrote the majority opinion, was somewhat bittersweet. Meyerson says the decision misread the point of his book and took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public.
But let's look at the opinion more closely. The majority's only citation to Professor Meyerson's book is in this paragraph:
Respondents maintain that prayer must be nonsectarian, or not identifiable with any one religion; and they fault the town for permitting guest chaplains to deliver prayers that “use overtly Christian terms” or “invoke specifics of Christian theology.” Brief for Respondents 20. A prayer is fitting for the public sphere, in their view, only if it contains the “ ‘most general, nonsectarian reference to God,’ ” id., at 33 (quoting M. Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America 11–12 (2012)) [emphasis added], and eschews mention of doctrines associated with any one faith, Brief for Respondents 32–33. They argue that prayer which contemplates “the workings of the Holy Spirit, the events of Pentecost, and the belief that God ‘has raised up the Lord Jesus' and ‘will raise us, in our turn, and put us by His side’ ” would be impermissible, as would any prayer that reflects dogma particular to a single faith tradition. Id., at 34 (quoting App. 89a and citing id., at 56a, 123a, 134a).
That is, Kennedy is explaining the losing party's argument, which relies (perhaps wrongly) on Meyerson's book for the proposition that the Framers thought only nonsectarian prayer was permissible. In the next paragraph, Kennedy goes on to argue that this proposition is mistaken as a matter of his (Kennedy's) reading of the history:
An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court's cases. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could “coexis[t] with the principles of disestablishment and religious freedom.” 463 U.S., at 786, 103 S.Ct. 3330. The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. One of the Senate's first chaplains, the Rev. William White, gave prayers in a series that included the Lord's Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom's Prayer, and a prayer seeking “the grace of our Lord Jesus Christ, &c.” Letter from W. White to H. Jones (Dec. 29, 1830), in B. Wilson, Memoir of the Life of the Right Reverend William White, D. D., Bishop of the Protestant Episcopal Church in the State of Pennsylvania 322 (1839); see also New Hampshire Patriot & State Gazette, Dec. 15, 1823, p. 1 (describing a Senate prayer addressing the “Throne of Grace”); Cong. Globe, 37th Cong., 1st Sess., 2 (1861) (reciting the Lord's Prayer).
Note that Kennedy does not rely on Meyerson's book here (or anywhere else in the opinion). So nothing is misrepresented. As Kennedy recounts, the plaintiffs/respondents argued for one view of history, relying on Meyerson. Kennedy concluded (perhaps wrongly, but that's a different point) that their view was incorrect. That's just a disagreement, not a misrepresentation.
To be clear, this is a press account, so I'm not suggesting the Professor Meyerson misread the opinion (just that his reaction was misreported, including by Professor Leiter). His book, Endowed by Our Creator: The Birth of Religious Freedom in America (Yale Univ. Press 2012), seems very important to the meaning of the establishment clause. Here is the description from Amazon:
The debate over the framers’ concept of freedom of religion has become heated and divisive. This scrupulously researched book sets aside the half-truths, omissions, and partisan arguments, and instead focuses on the actual writings and actions of Washington, Adams, Jefferson, Madison, and others. Legal scholar Michael I. Meyerson investigates how the framers of the Constitution envisioned religious freedom and how they intended it to operate in the new republic.
Endowed by Our Creator shows that the framers understood that the American government should not acknowledge religion in a way that favors any particular creed or denomination. Nevertheless, the framers believed that religion could instill virtue and help to unify a diverse nation. They created a spiritual public vocabulary, one that could communicate to all—including agnostics and atheists—that they were valued members of the political community. Through their writings and their decisions, the framers affirmed that respect for religious differences is a fundamental American value. Now it is for us, Meyerson concludes, to determine whether religion will be used to alienate and divide or to inspire and unify our religiously diverse nation.
Posted at 9:46 AM