Monday, June 27, 2005

Rightly Decided

My initial impressions were right; I agree with the decisions in both the Texas and Kentucky Ten Commandments cases as they came down. In the Kentucky case, both Justice Souter's opinion for the majority (himself, O'Connor, Ginsburg, Breyer and Stevens) and Justice O'Connor's concurring opinion are instructive. I would pass along this from O'Connor's:

"Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation. ...

The purpose behind the counties' display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer. ... It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment. ... Nor can we accept the theory that Americans who do not accept the Commandments' validity are outside the First Amendment's protections. ... It is true that the Framers lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of religions for which the Nation would eventually provide a home. They surely could not have predicted new religions, some of them born in this country. But they did know that line-drawing between religions is an enterprise that, once begun, has no logical stopping point. They worried that 'the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects.' ... The Religion Clauses, as a result, protect adherents of all religions, as well as those who believe in no religion at all.

We owe our First Amendment to a generation with a profound commitment to religion and a profound commitment to religious liberty - visionaries who held their faith 'with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar'" (internal citations omitted).

Scalia's dissent in McCreary is biting, and in fact quite nasty. O'Connor's (perceived?) swipe at him in her final paragraph clearly made its mark.

In the Texas case, Justice Breyer's concurring opinion (he being the swing vote in this instance) is the notable one. He does not join the majority opinion written by Chief Justice Rehnquist, which seeks to draw too bright a line in the sand (and which I also would not agree with), but notes the "borderline" aspects of the case:

"If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment. ... That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the [Religion] Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court's prior tests provide useful guideposts - and might well lead to the same result the Court reaches today, ... no exact formula can dictate a resolution to such fact-intensive cases. ..."

Breyer goes on to make his argument that the Texas display "is distinguishable from instances where the Court has found Ten Commandments displays impermissible." He concludes his argument by saying "But, as I have said, in reaching the conclusion that the Texas display falls on the permissible side of the constitutional line, I rely less upon a literal application of any particular test than upon consideration of the basic purposes of the First Amendment's Religions Clauses themselves. This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.

... [T]o reach a contrary conclusion here, based primarily upon the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility to religion that has no place in our Establishment Clause tradition ..."

Breyer's opinion is a classic example of judicial pragmatism at its best, not to mention a genuine centrist argument. Examine the cases on their own merits, and decide that way, not based on any line drawn in the judicial sands.


At 3:27 PM, Blogger Sean Sirrine said...

I'm surprised you didn't go into Scalia's dissent in Kentucky:

"With respect to public acknowledgment of religious belief, it is entirely
clear from our Nations historical practices that the Establishment Clause
permits this disregard of polytheists and believers in unconcerned deities, just
as it permits the disregard of devout atheists."

That is the quote of the day!

At 12:00 AM, Blogger JBD said...

Yeah - the old "just cover your eyes" excuse. Ugh.

At 12:07 AM, Blogger Mark said...

I suppose that the fabled "wall of separation between church and state" which is not found anywhere within the constitution or the bill of rights has no bearing whatsoever in the decision of the court? The concept of separation of church and state goes back to the colonial days and was inferred in the bill of rights because the Church of England, of which the King was the head, compelled the colonists to be members whether they followed the teachings of the church or not, hence, they made sure that the very first part of the very first amendment addressed that issue. Too many people in this country, because of the atheistic liberal media organizations, don't understand that freedom OF religion doesn't mean freedom FROM religion!

At 10:36 AM, Blogger Heiuan said...

As a follower of a non-mainstream religion, I have to say the the SC did a great job of splitting that very fine hair.

The display in Texas was always a part of a historical display of GREATER LAW. Inversely, the display in Kentucky was always overtly religious in nature.

Many of the traditions in this country were founded by Christians. Their religion has always permeated our society. And that is just fine.

Our culture is permeated with Christian icons, but our government was intended to be secular so that our citizens would not feel threatened with religious persecution. And if the high courts are seen to be promoting one faith over another, that is enough to trigger the Establishment Clause.

No, the EC isn't in the Constitution, it's in Jefferson and Madison's published letters and debates that were written after the Constitution.

But, just because the EC came after the Constitution, does that mean that these two men ceased to be Founding Fathers? That they lost their abilities to lead the new nation and their only worth to America had already been plumbed?

The Constitution and the Bill of Rights was an absolutely marvelous document that legitimized our fledgling nation. But, seeings as how long our founding fathers continued to serve as Statesmen and Officers of the Government, I don't see how the intent of the Framers was to say the Constitution is the ONLY set of laws we would ever need.

I think that the Supreme Court followed the spirit of the Constitution, not only the letter of it. Just me, though. YMMV.


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