It’s way too late to insist that our elected officials can’t just make up stuff. But there ought to remain a difference between a tweet and a federal lawsuit.
I’m often asked whether it’s challenging to be a Jewish professor at a Catholic college that takes its religious identity seriously, to which my answer is, first, no, and, second, I certainly prefer it to being a Jewish professor at a Catholic college that takes its religious identity casually. In any event, my contributions to the institution’s Catholicity through participating in its intellectual life are warmly welcomed, and to the extent I am involved in ritual events, I treat them like I would treat being a guest in someone else’s home. Still, my colleagues have been accommodating nearly to a fault. In more than one setting, prayers have been ecumenically tailored to my presence—wholly unnecessarily, but considerately nonetheless.
Which brings us to the case of Town of Greece v. Galloway, in which the Supreme Court ruled that sectarian prayer at public meetings was permissible. I’ve read the decision twice now. The opinions on both sides are thoughtful, and reasonable cases can be made for both; there is, moreover, broad consensus that some kind of prayer in public settings is permissible. Still, the constitutional question I can’t get past is: Why the fuss? Why, especially in the setting of a small town in which interactions are face-to-face and relationships are presumably as close to personal as federalism permits, could this dispute not be resolved by common courtesy rather than judicial intervention?
There is a debt of civility either side could have paid. Prayers—and some, to read the opinions, were sufficiently stridently sectarian that I confess they might have unsettled me in the pressure of a political setting—could have been more ecumenical without being less meaningful. Those in the religious minority could have modulated their own feelings of personal offense to the reality of the situation, which was almost certainly that no offense was usually intended, and barring that, they might have left the room.
In either event, what disturbs one about the case is the evident incapacity of either side to accommodate to the situation without resorting to the courts. One would expect that in the anonymity of national politics, but a core argument for federalism is that political relationships operate more productively in more personal local encounters.
Justice Kagan’s dissent, by contrast, argued that it was the very localness of the interaction that would place pressure on minorities to conform. Yet republicanism ultimately rests on an assumption of mutual reasonableness without which the very idea of self-governing citizens accommodating to one another’s needs and regulating the boundaries of rights collapses. On whose part, precisely, that assumption failed in this case is a matter known only to the denizens of Greece, New York. The fact that it did, though, ought to concern us all. If self-government does not work face to face, it is difficult to imagine how it endures coast to coast.
 To be sure Madison felt factions—including those pressing to establish a national religion, which was not at issue in Town of Greece—were likelier to form locally than nationally. But his solution in Federalist 10 applied to national majorities deciding national issues—again, not the case here.