Judge Posner, Judge Wilkinson, and judicial critique of constitutional theory.

• Author: DeGirolami, Marc O.
• Position: Richard Posner, J. Harvie Wilkinson III - II. The Judge at Work: Judicial Writing C. Perceived Official Favoritism of Christianity through Conclusion, with footnotes, p. 664-689

3. Perceived Official Favoritism of Christianity

   Our final comparison focuses on two relatively recent Establishment Clause opinions by Judges Posner and Wilkinson involving perceived official favoritism of Christianity. Both of the opinions precede the Supreme Court's decision last term in Town of Greece v. Galloway, which reaffirmed the constitutionality of legislative prayer. (196) Yet the Court's historically oriented test in Town of Greece provides a useful comparison with the opinions of Posner and Wilkinson in this area. All three reflect doctrinally controlled and substantively narrow readings of the Establishment Clause, but stylistically the opinions are different from one another.

   In Doe v. Elmbrook School District, Posner dissented from an en banc opinion of the Seventh Circuit holding that a school district violated the Establishment Clause by holding high school graduations at a Christian church. (197) In Joyner v. Forsyth County, (198) Wilkinson wrote an opinion for a split panel of the Fourth Circuit holding that a county board violated the Establishment Clause by inviting area clergy on a rotating basis to offer opening prayers at meetings when the resulting pattern of prayers was heavily weighted toward explicitly Christian invocations. While the decisions exhibit different approaches to the Establishment Clause, interpretive and role-related factors are intertwined in both, and institutional factors are at least as important as the judges' interpretive theories in their decisionmaking process. Their decisions as judges are not best explained by reference to their theories of pragmatism or restraint, but rather by reference to their situated understandings of the relevant legal materials.

   Doe v. Elmbrook School District arose out of a school district's decisions to hold high school graduations and related programs at Elmbrook Church, a nondenominational Protestant Christian "megachurch" (199) with a spacious sanctuary. The choice of location was prompted in part by overwhelming student votes to hold graduation at the church instead of a cramped and uncomfortable gymnasium. A seven-judge en banc majority of the Seventh Circuit held that the location of the graduation ceremonies impermissibly endorsed religion and resulted in religious coercion. (200) Judge Posner dissented. (201)

   Judge Posner's dissent leads with the text of the Establishment Clause and a curt discussion of its history, both of which "provide no clue" about the permissibility of public school graduations in religious buildings. (202) Posner then moves to a heavily critical discussion of the "formless, unanchored, [and] subjective" doctrine that the Supreme Court "has heaped on the defenseless text of the establishment clause." (203) He relies on dissenting and concurring opinions of Justice Thomas (criticizing the "endorsement test") and Justice Scalia (criticizing the test in Lemon v. Kurtzman) to underscore that even certain members of the Supreme Court share his skepticism. (204)

   Despite his dissatisfaction with the doctrine, Judge Posner discusses it at length. He associates the Court's principle that "all creeds must be tolerated and none favored" (205) with Edward Gibbon's aphorism that

   The judge should not be concerned with the truth or falsity of any religious faith but should regard the various faiths as "equally useful" from the standpoint of society, in recognition of the importance Americans attach to religion, the diversity and intensity of their religious beliefs and observances, and the bitterness and strife that the government's taking sides among competing faiths would engender. (206) He observes that "purely secular considerations, such as seating capacity, comfort, location, and price, may well have made the church the best alternative to the school's gym." (207) The graduation ceremony itself was entirely secular as well: Posner distinguishes Lee v. Weisman, Santa Fe Independent School District v. Doe, and Stone v. Graham on the ground that in those cases religion was part of the substance of the proceedings. (208) Though he acknowledges the presence of religious imagery and literature in the church, (209) there is no evidence that school officials "endorsed" anything relating to religion, (210) another tacit affirmation of the Supreme Court's favored approach to this issue.

   From the perspective of purely pragmatic adjudication, Judge Posner's emphasis on text, history, and doctrine is somewhat unexpected. Textual fidelity and historical inquiry tend not to be methods that pragmatists favor, at least not above other interpretive tools; (211) yet here, these considerations lead the opinion and appear to assume lexical priority over other interpretive methods. That is, not only are text and history included in the dissent, and not only do they take pride of place, but it is only because text and history do not foreclose recognition of other values or materials--indeed, only because text and history provide little assistance at all--that Posner is liberated to range over more conventionally pragmatic considerations later in the opinion. (212) The prominent position of textual and historical factors in this dissent--where, in theory, Posner might feel freer to ignore those interpretive methods that he discounted--is noteworthy. Yet Posner's emphasis on text and history and their position within the opinion are unsurprising when one remembers that Posner is not writing here as a constitutional theorist. His self-understanding of his own role demands that he situate his views within the discursive and interpretive practices of a court that is bound by a higher authority, even when he writes only for himself. (213)

   The relationship of Judge Posner's reliance on precedent to judicial pragmatism is more complicated. There is the usual definitional question lurking here involving the range of interpretive tools at the pragmatist's disposal. Posner has stated repeatedly that pragmatists follow text and precedent--indeed, that pragmatic judges "ordinarily ... treat text and precedents as the most important materials of judicial decision." (214) While an emphasis on the bindingness of precedent to the exclusion of other interpretive methods might suggest a departure from pragmatism, that is certainly not Posner's approach here. Perhaps Posner has only tactical reasons for giving such prominence to precedential arguments, though at least one of the reasons for a strategic emphasis on precedent--to win over colleagues to his opinion--does not obtain here.

   The balance of the dissent is laced with more conventionally pragmatic language and argument. Judge Posner discusses the absence of systematic study of the psychological or sociological effects of religious language and symbolism on teenagers (215) and criticizes the judicial armchair empiricism that characterizes Establishment Clause jurisprudence. (216) He is skeptical of the plaintiffs' claim of psychological coercion and the doctrine on which it is based, describing it as "florid hyperbole" and "whistling in the dark." (217) The most likely consequences of the majority's decision are

   first, to confirm the view of many religious Americans that the courts are hostile to religion; second, to infuriate students and their families by depriving them of the best site for their high school graduation ...; and third, to initiate what federal law does not need: a jurisprudence of permissible versus impermissible rentals of church space to public schools and other public entities. (218) Is Judge Posner's Elmbrook dissent an exemplar of judicial pragmatism? Posner once described Justice Breyer's concurring opinion in Van Orden v. Perry--one of two companion cases decided by the Supreme Court that involved the state-sponsored display of Ten Commandments monuments--as distinctively pragmatic. (219) Yet Breyer's opinion depends upon particularistic judgments about the monument's placement, aesthetic surroundings, and comparatively long history within the community without complaint--all factors that Breyer argued distinguished the monument in the Court's other Ten Commandments case, McCreary County v. ACLU. (220)

   These are the very features of Breyer's opinion that Posner praises as pragmatic extrajudicially (221) and yet also severely criticizes in his Elmbrook dissent. Posner believes that the majority in Elmbrook is creating a "jurisprudence of church furnishings" in which a constitutional violation will depend on courts' detailed inventories of church interiors. (222) Yet these particularistic and fact-specific aesthetic assessments are some of the very features of Justice Breyer's Van Orden concurrence that, in Posner's view, exemplify pragmatic adjudication. (223) If Breyer's Van Orden concurrence and Posner's Elmbrook dissent are both examples of judicial pragmatism, then something other than judicial pragmatism is needed to explain the differences between them.

   It would be wrong, however, to conclude that the tension between Judge Posner's praise of Justice Breyer's position in the Ten Commandments cases and his Elmbrook dissent demonstrates that the latter is not at all a pragmatic opinion. In part it surely is. Posner spends long sections of the dissent discussing plainly pragmatic considerations: the factual basis for making judgments about psychological coercion; (224) the lack of reliable empirical data on these issues; (225) the likely effects of a decision against the church; (226) and the association of state approval of religion with the weakening of religious fervor. (227)

   But it is not pragmatic all the way down. Or, stated differently, legal pragmatism incorporates nonpragmatic considerations in a way that a purer form of pragmatism would not. Judge Posner's dissent does contain features of "everyday pragmatism," (228) but everyday pragmatism is an insufficient explanation for it. As Posner has put it: "[t]he case for legal pragmatism is based...