Document Type

Working Paper

Publication Date

4-6-2015

SSRN Discipline

Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Sustainability Research & Policy Network; Anthropology & Archaeology Research Network

Abstract

Law and religion scholarship generally focuses on the temporal aspects of American religion and the law of the Religion Clauses not their spatial aspects This article argues that churchstate legal scholarship ought to take a spatial turn A substantial body of nonlegal scholarship has emphasized the influence of space and place on American religion and religious history The lens of geography observes a leading text provides an effective framework for analyzing the connection of religious belief to other spheres of thought and action at diverse scales Geography thus offers the potential for a richer understanding of American religious pluralism and of churchstate law itself The vehicle for this argument is a critical analysis of the Supreme Courts recent judgment in Town of Greece v Galloway which reaffirmed the constitutionality of legislative prayer even when delivered in front of a town board rather than before Congress or a state legislature Part I offers a critical summary of the opinions in Town of Greece v Galloway Part II compares Justice Kennedys opinion for the Court in Town of Greece with the principal dissent written by Justice Kagan It argues that despite their differences the two opinions have much in common Each presents a monistic sweeping vision of American religious pluralism suggesting that there is a single correct definition of religious pluralism one that is national in scope and uniform in application despite the nations incredible cultural and geographical diversity Ultimately for the reasons offered below both visions of American religious pluralism are thin unsatisfying and unlikely to last Part III provides an introduction to religious geography with its focus on spatial rather than temporalhistorical or abstract theoretical approaches to the story of American religious pluralism It turns the geographical lens on two aspects of Town of Greece First it provides an account of the importance of regions in American religious life and the varied strategies employed by different regions in dealing with religious pluralism It concludes that efforts like those of Justices Kennedy and Kagan to define or describe American religious pluralism in monistic terms and then build Establishment Clause law on the basis of that monistic account are mistaken and inevitably unstable Rather in the words of one author American religious pluralism can be understood as in fact consisting of an array of geographically defined pluralisms Second it examines what Richard Schragger has called the role of the local in understanding American churchstate law in general and Town of Greece in particular This section focuses on one striking and unfortunate aspect of Town of Greece the majoritys conclusion that the town acted reasonably when it limited its list of potential prayergivers to those living within the towns borders This limitation ignored the significance of the Jewish synagogues located close to the town but outside its official borders The article argues that the towns and the Courts approach to this question should have been sensitive to local facts and conditions not transfixed by a set of imaginary lines Somewhat ironically the opinion in this case that is most conscious of localism is Justice Alitos concurrence which emphasizes the informal imprecise practices of small and mediumsized units of local government and insists that courts must cut these units some slack in evaluating their practices lest they be foreclosed from offering legislative prayers at all For all the reasons that Alito suggests the Court should have done exactly the opposite of what he wanted and invalidated the towns prayer practices But that particular conclusion is less important than the general point geography including religious geography matters and should be an important part of churchstate law and scholarship

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