A sensible, insightful, and well-written post at SCOTUSblog; I don't entirely agree with it, but it's much worth reading. Neuborne is a former National Legal Director at the ACLU, but this is definitely not the standard ACLU line.

AppSocRes (mail):
The contortions of the Supreme Court vis-a-vis the Establishment Clause are the end result of a series of decisions which date back to the 1940s and which have been based on a mis-application of the 14th Amendment. The original intent of the First amendment's Establishment Clause was to prevent the federal government [Congress] from imposing a national religion on the States. A straightforward reading of the Clause, discussions of it at the time, and historical data on State law and practices all support this. When the Bill of Rights was adopted and for many years afterwards some States, e.g., New York and Massachusetts, had established religions in every contemporary and modern sense of the term. At the same time all the States accepted freedom of conscience and freedom to practice all religious practices that did not offend the public sensibility, e.g., with animal sacrifices.

Gradually, and without federal interference, the States eliminated established religions. Utah committed to this before it was allowed admission to the Union.

Only since the 1940s, using a broad interpretation of the 14th Amendment, has the Court attempted to impose federal restraints on how the States and local communities must relate to religion and religious practice. The Establishment Clause, with its unique focus on restraining Congress's ability to affect either the establishment or disestablishment of religions by the States is uniquely unsuited to the task. The result is an endless series of federal interference in local affairs with no real Constitutional basis. It subverts the intent and intended operation of the Constitution and generates a pervasive disrespect for the federal government. Ultimately it subverts the Republic.

Inevitably judicial arrogance and over-reach lead to insuperable and politically corrosive problems. Burger's ad hoc intervention to eliminate abortion as a political issue springs to mind.

A one-hundred-percent-guaranteed prediction: the latest Solomonic decisions of the Supreme Court will not make these problems go away.

Less Court restrictions on religious affirmations by States and localities would probably end by removing the anger of religious persons towards those thwarting the free expression of their beliefs and hence increase overall tolerance. More Court restrictions, no matter what the Court's intent, will have the opposite effect.
6.28.2005 11:19am
If I understand AppSocRes correctly, he's saying if religious persons were no long restrained in how they promoted their religion, there would be more tolerance for athiests, polytheists, and those outside protestant christian morality like homosexuals.

While I agree that restrictions on how people can apply their religion to their daily lives probably upsets them, it is also true that how they apply their relious beliefs can have intentionally negative consequences for others.

The 10 Commandments posted on the courtroom wall sends a message that certain citizens cannot expect equal treatment and erodes confidence in our justice system.
6.28.2005 12:10pm
AppSocRes (mail):

It is true that references to Christian religious beliefs in public places may cause psychological discomfort; if only because they may unpleasantly remind some who are not Christian of the unavoidable fact that they are a religious minority in this country.

However, there is no reason such references should impact due process and equal treatment. There are many powerful Common Law, Constitutional, and statutory protections -- besides over-broad readings of the First Amendment -- to ensure that this has not, does not, and will not occur. Otherwise, atheists would fear to appear before the Supreme Court, which itself operates with many vestigial references to a one, all-powerful God and His providence.

The Court's current rulings protect a very small number of paranoid or litigious citizens from imaginary threats and real -- but minor -- slights, but at the expense of permanently alienating a much larger group of citizens. The resulting enmity is poisoning republicanism (the small letter kind) in this country and having minimal, if any, impact on true religious freedom and civil rights and liberties.

This is my argument to practicality and like all such arguments in a legal and/or moral situation it is weak, but I don't think any weaker -- or stronger -- than your counter-argument.

My sub-argument here is that, as with abortion, the Court's intention to defuse a political issue with questionable legal reasoning, has actually had the opposite effect and turned a minor problem into a major and intractable issue. I suspect you would disagree with this and argue that the status quo ante was an intolerable burden on those who suffered when viewing displays of religion in the civic arena. If this is the case, let's agree to amicably disagree on this also.

My Constitutional arguments are based on a radical kind of originalist interpretation. Obviously I like them, but I'm not a lawyer and am not sure whether any reputable legal scholar would accept them. I'd be interested in your reaction or any one else's to those other arguments in my post.

6.28.2005 3:39pm

In a perfect would, I would agree that christian icons displayed in the courtroom should not impact due process or equal treatment for minorities. Certainly judges will hold their own private prejudices regardless. However I disagree that the effect of allowing majority religious symbolism in a courtroom would be limited to only psychological discomfort. Were that the case, a strong history of judicial religious restraint would easily eliminate the problem. And that's the rub—there is no such history where certain classes of individuals are involved.

Homosexual citizens have experienced a long history of having judges quote the bible to them. They've endured the physically distressful results of the "homosexual panic" defense. This is a class of citizens so hated by the christian majority that where hate crime laws exist (which are controversial in themselves) there is controversy over whether homosexuals should be protected under them.

I don't think it is limited to merely the paranoid nor is the slight of having a judge tell you his God says you deserve what you got minor.

My argument, in a nutshell, is that your reading of the Establishment Clause will reduce tensions with the majority while simultaneously removing a barrier that protects certain minorities.
6.29.2005 11:32am