Writing for the Library of Law and Liberty, Prof. Hadley Arkes argues that the decision in the Town of Greece case should bring about jubilation, since if we attend closely to the holding of the Court, it protects the religious as it protects everyone.
“[T]he [Town of Greece] case has a redeeming touch of madness: It did not offer a defense of religion as a distinct body of conviction and practice, which deserved to be appreciated and celebrated, especially in the life of a republic. But it offered a deeper, wider protection of religion, running well beyond the matter of prayers before legislative assemblies.”
“Many of the religious, in their euphoria over the outcome [of the Town of Greece case], may not have noticed that Justice Kennedy moved in an expansive sweep by reducing ‘religion’ to encompass atheism or the rejection of gods and God. And yet the atheists surely did notice. In different parts of the country atheists have experienced a new surge of energy as they’ve sought to take advantage of this new license conferred by the Court in Town of Greece.…[E]ven our friends at the Church of the Flying Spaghetti Monster are flying again: They are getting in gear to field members on a broad field to offer themselves for invocations and their parody of religion. Truly, the holding in Town of Greece has brought us Springtime for Atheists.”
“What we may be seeing engaged here is nothing more than what we have seen in many other instances in our law: Lawyers and judges come to understand the holding in the case as so closely tied to the circumstances in the case that they have a hard time seeing the principle that may apply quite as aptly to other cases more remote, with far different circumstances.”
“If we see the holding in Town of Greece with a different lens, the holding works to protect the religious as it casts protections on us all, the religious and non-religious. In that respect it could deliver some of the same advantages that I’ve suggested for an alternative line of reasoning in the Hobby Lobby case. I’ve argued in that vein, following the lead of Judges Janice Rogers Brown and Diane Sykes in other cases, that Hobby Lobby could have been won without putting the main and decisive accent on the ‘theology’ of the litigants or the ‘sincerity’ of their ‘beliefs.’ Indeed, most critically, the case could have been resolved without reducing our understanding of ‘religion’ to a cluster of ‘beliefs’ detached from the claims of truth.”
“If my reading here is correct, the holding in Town of Greece wrought better than we had reason to hope, and accomplished even more than our friends have lauded it for doing. The lesson, and the case, may finally be put in this way: Can we not see the ingredients of a better jurisprudence, and a jurisprudence running deeper, in a jurisprudence that would protect the religious as it would protect us all?”
Read the whole piece here