Guido Calabresi is famous for his transformative scholarship on torts, his leadership as dean of Yale Law School, and his tenure on the Second Circuit Court of Appeals. But above and beyond those accolades, Guido defines himself as an outsider, “a Catholic Jewish Italian,” (OI, v.1, 104) “an immigrant, and a refugee” (OI, v1, 1). In this post, I want to suggest that the religious dimension of Guido’s outsider experience is reflected in his famous majority opinion in Galloway v. Town of Greece. Normally I would be hesitant to read the personal biography so directly into judicial philosophy, but Outside In encourages it. Readers can’t help but see the conversation between volume one, a narrative oral history of Guido’s childhood through early adulthood, and volume two, a more thematic look at his work as dean and judge. In my own reading, I was struck by how much of Guido’s youth was shaped by the tension between religious inclusion and exclusion, and how Guido connects that experience to his “egalitarian believer’s First Amendment” (TOC).
Guido’s religious heritage made him both sensitive to being an outsider and appreciative of religious pluralism. Both of his parents had roots in the small community of Jews in Italy (his mother converted to Catholicism), marking his family as outsiders even before the rise of fascism drove them across the Atlantic. And as he narrates in volume one of Outside In, the starkest experiences of being an outsider came in his family’s transition to life in the United States.
The social terrain of mid-century New Haven was defined in large part by religious and ethnic differences. An historically Congregationalist town, the New Haven that greeted the Calabresi family was also home to Catholic and Jewish communities where they might have found fellowship. The Calabresis were outsiders even here, however. As migrants from wealthy northern Italian Jewish extraction, they felt little commonality with the southern Italian-American community in Wooster Square, or the Ashkenazim at a local summer camp (OI, v1, Ch. 5). In Guido’s words, “We really did not belong to anyone” (OI, v.1, 101).
|Dwight Hall YMCA building at Yale (credit)|
New Haven was also Guido’s introduction to the American civic religion – a kind of non-denominational Christian public faith present in his Boy Scout Troop and public schooling (OI, v.1, 102-103). Although he was sensitive to the pressure on Italian Americans to assimilate, he also appreciated the welcoming Protestant community that embraced the young brothers. One anecdote is particularly illuminating – after trying out a Jewish summer camp and a Catholic school, someone suggested to Guido’s parents that they send the boys to a YMCA camp. “The idea of some association that would define itself as ‘Christian’ sounded anti-Semitic,” at first, but they were informed that the YMCA was an inclusive place, “open to everybody” (OI, v.1, 101-102). Guido remembers it fondly.
With the benefit of hindsight I was struck by the parallels between this story and Guido’s opinion in Town of Greece. The case arose in a suburb of Rochester, New York, where town officials invited local clergy to open monthly town meetings with a prayer. Over eight years, every prayer was offered by a Christian leader, with only four exceptions. According to the record on appeal, two-thirds of the prayers had overtly Christian theological references. Two residents objected that the use of Christian prayers in city government violated the Establishment Clause by giving Christianity preferential treatment through “sectarian” religious practice. Town officials responded that they had only invited Christian clergy because there were no places of worship for other faiths within the town boundaries. The Supreme Court’s Establishment Clause precedents turned the Second Circuit’s attention toward the content of the prayers – whether they promoted particular Christian denominations, or instead reflected a non-denominational message.
|Town Hall, Town of Greece (credit)|
But Guido saw things differently. The important issue was not the content of any particular legislative prayer, but whether the practice “conveyed the view that the town favored or disfavored certain religious beliefs.” (Galloway v. Town of Greece, 681 F.3d 20, 29 (2d Cir. 2012). By selecting (essentially) only Christian prayers, town officials had “affiliated the town with a single creed.” (at 22). The opinion reasoned that government cannot define the religious character of a civic institution to the exclusion of other faiths. Unlike the YMCA of his childhood, whose Christian identity informed its inclusivity, the Town of Greece risked an exclusionary religious affiliation.
Reflecting on the opinion in Outside In, Guido explains: “My compromise was one that said, ‘You can have local establishments, locally defined identities, so long as you do it in a way that also states that your place is open to everybody.’” (OI, v.2, 330). The problem from Guido’s point of view was not religion in public life, but religious exclusivity. If the town opened up the selection process in an inclusive way, “the town can also have plenty of Christian prayer leaders” without any problem. (OI, v.2, 330). His view of the issue celebrates free exercise as a progressive value while emphasizing that religious equality cannot thrive where some faiths are excluded.
The Supreme Court reversed the Second Circuit, reasoning that Town of Greece’s prayer practice was constitutional because it did not coerce non-Christians. Justice Kennedy’s majority opinion asserted that attendees at the meeting would presume that an opening prayer was meant to solemnize the proceedings, not to define the polity as Christian. This kind of coercion analysis has become a lodestar of contemporary Establishment Clause cases, including last term’s Kennedy v. Bremerton School District, which found no coercion where a football coach – who had previously prayed with and given religious speeches to his players – invited both teams to pray with him on the fifty-yard line after games ended.
In Guido’s alternative, “coercion is of course forbidden, but it is not enough” (OI, v.2, 331). He would draw the Establishment Clause line beyond coercion, to prohibit religiously-motivated exclusion. And while this principle derives from caselaw, it also reflects his childhood experience. He explains that “growing up in New Haven, I never felt coerced, but nevertheless, I did not like it when we recited the Lord’s Prayer, Protestant version, in all these local elementary schools, which were loaded with Irish Catholic kids” (OI, v.2, 331). In other words, his interpretation of the Establishment Clause protects against more than active inducement to a particular religious practice. The appellate decision in Town of Greece, and the foundational school prayer decisions that undergirded it, drew the line instead at government imbuing public institutions or spaces with religious identities that would leave outsiders feeling excluded.
-- Kate Redburn