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Eminently Quotable, But Is It Sound?

Justice O'Connor, concurring in the case that struck down the Kentucky Ten Commandments display (paragraph breaks added, emphasis added), writes:

Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society.

By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that "[w]e are a religious people" has proved true. Americans attend their places of worship more often than do citizens of other developed nations, and describe religion as playing an especially important role in their lives. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?

I'm sure this will be quoted often — but is it really apt? For much of our nation's history our system has been (by and large) little legal coercion of religious practice, coupled with routine government references to religion, including displays of Ten Commandments memorials; displays of creches; graduation prayers and even daily prayer in school; Presidential preclamations and Congressional acts praising religion; references to God on coinage, in the National Anthem and elsewhere, references that likely contained, at least at the time, some message of endorsement of theism; and more. And this has continued until recently: I suspect that standalone creches were quite common until the 1989 decision striking them down, graduation prayer was quite common until the 1992 decision striking it down, and Ten Commandments displays, even ones that the Court would now consider unconstitutional, were fairly common until today.

What's more, little legal coercion of religious practice, coupled with routine government references to religion is the system that Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas would adopt. Justice O'Connor's system is much less tried and true.

Now Justice O'Connor might well be right on her bottom line: Perhaps barring Ten Commandments displays, and similar government endorsement of religion, would further strengthen American traditions of religious tolerance, and would increase the religiosity of Americans to boot. (Query why increasing the religiosity of Americans should be any concern of the Court's; perhaps as to that, she meant to ask why supporters of religion should want to trade away a system that has served them so well.)

But it seems to me far from clear that her argument for that bottom line works here. That a routine-endorsement-of-religion system has done good things in the past (compared to systems whose flaws went far beyond endorsement of religion) doesn't mean that a no-routine-endorsement-of-religion system would yield equally good results in the future.

James Kolbert (mail):
Professor Volokh's argument, if I correctly understand it, is that Supreme Court opinions constitute state-action. Thus, much as a state court enforcing a racially-restrictive covenant is a VOID act, a SCOTUS holding could be VOID (of course, for institutional reasons, only a future SCOTUS could overrule the holding).

If this argument is sound, then what would prevent a men's rights litigant from arguing that the balancing test in Doe v. Bolton (always in favor of the woman) is a denial of Equal Protection? Or that child support laws violate Equal Protection so long as women have a unilateral right to abortion, because a hypothetical woman's female sex partners are not targeted for income redistribution, but her male sex partners are, simply because of the natural and probable consequences of their biological capacities, i.e., inability to generate sperm and fertilize a woman during intercourse. This undue burden, one could argue, on heterosexual male intimate association is not imposed on lesbians, female bisexuals, or homosexual men. Thus the balancing test in abortion rights cases and child support policies (always favoring the mother) singles out male heterosexuals for their ability to produce sperm and the kind of sexual activity in which they choose to engage. If you engage in sexual activity that tends to fertilize, you pay; if you do not, you don't.

I do not mean to be controversial, but this seems the logical conclusion of Professor Volokh's argument.
6.27.2005 3:49pm
Zev Sero (mail) (www):
I don't see that in his words at all. I wonder where you see it. He isn't saying that the court had no right to make this decision; he isn't even saying that the decision was wrong. All he's saying is that this particular argument that O'Connor made for the decision doesn't work. O'Connor assumes that the current system, where state endorsement of religion is strictly barred, and this prohibition is carefully policed, is one that "has served us so well"; the plain fact is that it isn't. For better or worse, the system that was in place for most of the history of the USA, and which does indeed seem to have served us pretty well, did allow a lot of latitude in endorsement of religion, so long as it didn't get too specific, and didn't infringe on the free exercise clause. That system has recently been "traded" for the one we have now; perhaps the trade was for the good, and the new system will prove to work even better than the old one did, but don't pretend that the new system is what we've always had, and the old one is something radical, new and untested.
6.30.2005 5:29am