Reading the Court’s recent Establishment Clause decision in Town of Greece v. Galloway made me think about what it would be like to live in two different towns in upstate New York: the real-life Town of Greece, whose public prayers were at issue in the case, and the fictional “Spruce Falls,” which is the setting of Kurt Vonnegut’s short story “Poor Little Rich Town.” What unites these two places is the importance of custom.
In “Poor Little Rich Town,” a know-it-all businessman moves to a small town in New York called Spruce Falls. Initially hailed as a sensation, the businessman quickly tries to improve the efficiency of town operations — and does, at least for a while. “It’s a great advantage, coming into situations from the outside, the way I do,” the businessman declares. “People inside of situations are so blinded by custom.” But the ultimate results are disastrous, because the businessman fails to understand that some of the town’s apparent inefficiencies are actually purposeful. The crescendo (spoiler alert) occurs when the businessman triumphantly informs the townspeople that they can eliminate the need to pick up mail at the local post office by arranging for home delivery from a nearby city. “Try to find somebody who doesn’t know that he can have his mail brought to his door any time he wants to,” a local resident responds. It turns out that the town has kept its post office in place because of its beloved postmistress, whose husband died saving members of the community from a fire.
In Town of Greece, custom arises in connection with the Court’s use of history. Some commentators have viewed the Court’s historical analysis as playing an “originalist” role, in the sense of construing the Establishment Clause to permit practices extant at the time of its ratification. But, as the example of Spruce Falls suggests, history can also play what might be called a traditionalist or Burkean role, and Town of Greece seems to adopt that approach. For a traditionalist, history is relevant not so much because it correspondents with original practice, but rather because it reflects proven, livable solutions to practical problems. Town of Greece discussed this way of using history in a passage glossing Marsh v. Chambers. Here is an edited section of the key passage, with cites omitted and emphasis added:
Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.
The Court appears to believe that, when it comes to the combustible subject of religious practice, it is better to preserve customs that already exist than to try to improve upon them, even if they seem imperfect. Like the businessman in Spruce Falls, a court that approached local religious situations “from the outside” might end up causing more harm than good. This traditionalist attitude has obvious appeal, but its difficulty is equally apparent. Sometimes, the businessman is right: we can become “blinded by custom.” And it is hard to know when.