Justice Scalia is fond of excoriating his more centrist colleagues for blurring the line between politics and judicial decision-making. The decision to strike down a Colorado measure that discriminated against gay, lesbian and bisexual individuals was "an act, not of judicial judgment, but of political will," he wrote in his dissent to Romer v. Evans. Seven years later, again in dissent, he called the decision to strike down Texas’s anti-sodomy law in Lawrence v. Texas "the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."
There are those of us who think Scalia does protest too much, that his rulings are at least as transparently right-leaning as those he rejects are, in his view, transparently left. After all, if the majority in Lawrence took sides in the culture war over gay rights, as the accusation stands, then Scalia did too. He just came out on the other side.
Last week the Court decided Washington Grange v. Republican Party, and once again Scalia found himself in dissent. Having read and re-read the decision nearly a dozen times, I can’t help but conclude, once again, that it is Scalia himself who stands guilty of blurring the lines between politics and law. Its not so much that I disagree with his rationale, or his conclusion. Much to my surprise, I agree with Scalia on the merits of the case. That said, I can’t find a way to reconcile his dissent in Washington Grange with what he’s written in other First Amendment cases.
Let me explain.
Washington Grange involved a challenge to the state’s primary system whereby the top two vote-getters advance to the general election. It’s a cross-over primary, meaning that voters from any party can participate, and candidates themselves can designate a party preference on the ballot even if they are not that party’s official nominee. So in theory, David Duke could run as a Republican though the party would neither nominate nor publicly endorse him as a candidate.
Since the primary system had yet to be implemented, there was no way of knowing whether voters would be confused by thinking a self-identified "Republican" lets say, was the party’s actual nominee. So said the majority in explaining why the primary system did not, facially at least, violate the political parties’ First Amendment right of association. But Scalia, correctly in my view, understood that the party in fact would be forced to associate with persons whose views and ideology it rejects. In a dissent joined by Justice Kennedy, he explained that the ballot is the only thing voters are guaranteed to see, and the last thing they will see before casting a vote. The risk of an unwanted association was real, and therefore constitutionally significant, even if the candidate’s self-designated party affiliation was explained on the ballot as just that - a self-designation. Voters, he seemed to say, won’t always read the fine print.
So far I’m with Scalia. Once an individual expresses public support for a group, the connection is made, and the average voter isn’t likely to distinguish between an asserted affiliation and a mutual association absent a meaningful expression of dis-association. Scalia understands as much in Washington Grange, but what about other scenarios where perception matters just as much? How about religious expression?
In Lee v. Weisman, the Court found that inviting clerical members to offer prayers and benedictions as part of an official graduation ceremony violates the Establishment Clause. Though students were not in fact required to join in the prayer, the reality of "subtle coercive pressure" among school-age children meant that most students would feel compelled to participate in one form or another - perhaps bowing a head, perhaps standing in respectful silence. This was enough for the majority in Lee to find a constitutional violation. But taking the analysis one step further, with hundreds of students standing uniformly, no-one in the audience would have been able to distinguish between students who were in fact engaged in prayer and those who were not. The very act of standing alongside those engaged in prayer would send a common message, creating a risk of religious support, affiliation or, to analogize Washington Grange, association.
Scalia’s dissent in Lee was outright hostile to this line of reasoning. Say a non-adherent is ‘"subtly coerced" . . . to stand! Even that does not establish "participation" (or "an appearance of participation" in a religious exercise,"’ he said, because observers would simply infer that non-adherents are standing out of respect for the religious practice of others rather than out of an expression of approval for religion itself. But if Scalia understood that a candidate’s stated affiliation with a political party on a primary ballot creates a risk of association in Washington Grange, how could a student’s physical affiliation with a religious ceremony during a high school graduation not do the same in Lee? And just as the political party cannot effectively disclaim the association created by an unwanted candidate’s ballot designation at the moment it most matters, neither can a student who is forced to stand during a graduation prayer effectively disclaim an endorsement, or de facto association, with the religious views being expressed in the prayer.
What am I missing? Are we really talking apples an oranges? Or can we ask why Scalia understands the risk of unwanted political association in Washington Grange, but not the risk of unwanted religious affiliation in Lee? The two cases involve distinct First Amendment rights (association on the one hand, religious freedom on the other), but they aren’t that different. Each involves a claimed interest in individual expression that arises from the right to stand (figuratively, or not) alongside like-minded folks. Religious endorsement claims and free association claims target two different risks in order to protect one single freedom - freedom of self-expression.
And so back to my original point. If Washington Grange and Lee are similar in the way I’ve described, then objective non-partisan decision-making would have compelled Scalia to follow the same path of reasoning at least regarding the risk of precieved affiliations. But he didn’t.
If there’s one common thread between his opinions in the two cases, perhaps it is simple deference to the status quo. The majority in Washington Grange upheld a primary process that seeks to counter the influence of entrenched political parties. The majority in Lee struck down a graduation prayer ceremony that arguably confirmed the public monopoly of main-stream faiths. In both cases Scalia would have left the dominant structure in place, setting aside his own responsibility as a jurist to safeguard minority rights against overreaching majorities.
-Kathleen A. Bergin