The "Divisiveness" of Religious Displays:

More generally, both the New York Times and Washington Post editorials are very taken with (one might even say that they "adored") Breyer's comment that ordering the removal of the Texas monument could "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid," suggesting that both Editorials believe that the touchstone for interpreting the Establishment Clause is the potential for "divisiveness." I have heard esteemed constitutional law scholars make this argument as well.

Leaving aside for the moment whether the opinions were correctly decided or not, or whether the purpose of the Establishment Clause is to minimize social divisiveness, the idea that the Supreme Court has any idea what could make for more or less divisiveness on this issue is, quite frankly, preposterous.

Eugene questions whether Supreme Court intervention in this area has actually tended to reduce rather than increase divisiveness.

I think there is a more important point here--how can the Supreme Court possibly know what exact type of religious display may actually be more or less divisive? More or less divisive than the alternative? Well, who in the heck knows--but that is the point isn't it? How can the Supreme Court possibly know what the most divisive policy is with respect to these hair-splitting distinctions.

If the Supreme Court is going to leave the realm of constitutional principle and engage in the policy analysis of social divisiveness, surely it has some obligation to have some foundation deeper than hunch and guesswork, doesn't it? It seems like it has to at least have some empirical foundation for its judgments.

Now, I have not seen a shred of serious empirical evidence that would answer Eugene's question or provide any guidance whatsoever about the degree of "divisiveness" of a given opinion. And isn't it obvious that the purported divisiveness of a given display will differ very much from one location to another? It is bad enough that the Supreme Court thinks it is qualified to engage in this sort of hair-splitting without any empirical evidence to support it ("not removing this one is divisive, removing that one would be more divisive than the divisiveness it is supposed to cure"); it is even worse when it is pretended that this is proper jurisprudence.

In fact, I'll bet that on an actual "divisiveness" scale, both displays rated pretty low--I'll bet few people really cared much about them one way or the other. And I'll bet that the communities in these cases reached a fairly consensus agreement on what they would be willing to tolerate.

Compare the mythical nature of the likely divisiveness in these cases with, say, the recent political comments by Karl Rove and Senator Durbin. Yet nobody thinks that the divisive nature of those comments has anything to do with whether they are constitutionally-protected. If so, then public divisiveness doesn't seem to get us very far as a constitutional concept. And if it does, then let's apply the concept where it really matters.

In sum, the whole discussion of the supposed "divisiveness" of religious displays seems silly to me. No serious empirical evidence is offered to back it up, and there is no reason to think that the Supreme Court has comparative advantage in weighing degrees of "divisiveness." It seems far better for the Supreme Court to actually try to make principled rulings rather than to pretend like they actually have some empirical data to back up what amounts to personal, uninformed hunches of nine inside-the-beltway lawyers.

Related Posts (on one page):

  1. More on "Divisiveness":
  2. The "Divisiveness" of Religious Displays:
pug (mail):
I think you’re clearly right, although I don’t know why people aren’t taking Scalia to task for doing exactly the same thing.

Scalia thinks posting the Ten Commandments is fine because it only “discriminates” against non-traditional religions because each of the three “major” religions recognize the Ten Commandments. But Muslims, Jews, and Christians don’t agree on what constitutes the Ten Commandments; there’s even disagreement between different Christian sects about what are the Ten Commandments. When the government posts the Ten Commandments, it necessarily must select between these competing versions. When it chooses, for example, to post the Protestant version of the Ten Commandments, it takes sides in a sectarian dispute. (“Choosing” the favored interpretation of religious texts, of course, is one of the key characteristics of the Anglican church.) How does Scalia not characterize this as a sectarian dispute? Well, he sets aside “constitutional principle,” and engages in a “policy analysis” to determine social facts without any empricial evidence. In footnote 12 of the Kentucky case, he writes:

Because there are interpretational differences between faiths and within faiths concerning the meaning and perhaps even the text of the Commandments, JUSTICE STEVENS maintains that any display of the text of the Ten Commandments is impermissible because it “invariably places the [government] at the center of a serious sectarian dispute.” Van Orden, ante, at 13 (dissenting opinion). I think not. The sectarian dispute regarding text, if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not). In any event, the context of the display here could not conceivably cause the viewer to believe that the government was taking sides in a doctrinal controversy.

So something only discriminates against different religious sects if, in Scalia’s opinion, most religious adherents are ignorant enough about their own religion to not know the government is taking sides in a sectarian dispute. Perhaps next we’ll see Scalia uphold a monument to Jesus Christ because most religious adherents in this country might not know that the “preferred religions” disagree over Christ’s religious role. Scalia attempts to avoid this conclusion by writing that no viewer would believe that the government was taking sides in a doctrinal controversy, but that only restates the problem: most people don’t know that different religions view the Ten Commandments differently.

So, even though we are a “religious people,” as long as we don’t take our religion too seriously (or take the time to educate ourselves on religion), then the government can takes sides in sectarian disputes.
6.28.2005 3:49pm
jgshapiro (mail):
I think Breyer's point was that the religion clauses (and especially the establishment clause) were designed to prevent societal divisiveness, not the speech clause or the rest of the First Amendment. So whether Rove's or Durbin's comments were divisive doesn't shed any light on the issue, since Rove and Durbin were not seeking to establish or to endorse a religion.

Conversely, the removal of the Ten Commandments would generate a lot of divisiveness, and I think you underestimate this fact by pointing to the fact that few noticed the monuments when they were just sitting there. True, but bulldozing them (or sandblasting them, to use Scalia's metaphor) would be a different matter. That would be seen by many as hostility to the monuments, and to the religion(s) they represent, in a way that ignoring them would not.

I don't know if Breyer's focus is correct, but he is clearly right that the least divisive course of action is to leave well enough alone, which means to leave those monuments there that are there already standing, and not to permit new ones to be placed unless they are clearly secular in context and intent.

As for principled analysis vs. hunches, I don't know where you would get empirical analysis of such things. Should they commission a study? Is there already a study? Can they not take judicial notice of the likely effects of their rulings on society (based on their experience and knowledge as judges and citizens), or are they limited purely to articulating bright-line prinicples and then ignoring whatever chaos may ensue from them? It is interesting to contrast Breyer's dare-I-say *nuanced* rulings on the Ten Commandments with the more hand-grenade approach of Scalia in the sentencing guideline cases. What's the matter with a little pragmatism?
6.28.2005 3:52pm
Bill (mail):
For a minute there, I thought that Todd was going to say:

This shows that we need some scientific studies of what causes religious divisivness and this inquiry should play a more important role in Supreme Court jurisprudence.

That would be a perfectly plausible way to go as far as I'm concerned.

Then maybe somebodies could undertake some religious studies of scientific divisisivness... maybe even interfaith studies organized by Justice Scalia :)

Alright, I'm off some to read some studies of the role of science in jurisprudence going.
6.28.2005 4:28pm
David M. Nieporent (www):
What's the matter with a little pragmatism?

Well, among other problems, it gives zero guidance to lower courts -- or to state officials, for that matter.

When a local politician wants to put up a monument, what basis does he have for evaluating whether it will pass constitutional muster? When someone complains about one of these monuments, what basis does the judge who hears the case have for issuing a ruling?
6.28.2005 4:47pm
Robert Schwartz (mail):
It strikes me that the statutes that require the Government to pay the winners in these cases are much of the problem. If there were no money in litigation such as the 10 Commandments cases, much of it would go away, and we would be better off.
6.28.2005 7:29pm
Bob Flynn (mail):
"Diviseness" is an ill to be remedied by the Supreme Court?

That's seems kind of odd, considering that law, almost by definition, is itself divisive -- it divides what you can and cannot do. It divides law-breakers from law-abiding citizens. The prohibition against murder is very divisive.

But, I guess Justice Breyer is using the term "divisive" to mean whether or not it is "divisive" to have a law, that itself is "divisive." Sounds a lot like infinite regression to me.
6.28.2005 8:13pm
I understand the urge to narrow debate, but to begin a discussion on the consideration of divisiveness by the Supreme Court in an Establishment Clause case by stipulating that whether divisiveness figures in the Establishment Clause must be sidelined seems an odd rule to play by. After all, if the Establishment Clause does take into consideration divisiveness, then whether the Supreme Court is ill-suited, unprepared, or congenitally incapable of consideration of the heuristics of divisiveness would be almost moot, and clubbing Breyer might not be necessary. It wouldn't hurt to have the right debate first.
6.29.2005 12:48am
John McG (mail) (www):
One of the problems with measuring divisiveness is that you can't unring the bell. Each step makes the next step more dvisive.

The least divisve state would be if the display was never there at all. Putting the display there in incrementally more divisive. Ordering it removed ratchets it up some more. Keeping the display despite an order to remove it, or putting up a new one knowing it would likely be ordered down escalates things even more.

I guess the justices might think that by ordering the display removed, they can prevent others from putting up diplays at all, resulting in the least divisive state. But that doesn't seem to be how things are playing out...
6.29.2005 11:43am
roysol (mail):
I agree that the divisiveness issue is probably best set aside for the purpose of ruling on the law. I take issue with your contention that this is not divisive because the majority(or a larger majority than the 51% to 49% voter split)think it is ok. When you have a small but passionate group who disagree with the majority, that is divisive.

di·vi·sive (dĭ-vī'sĭv)
Creating dissension or discord.

The adjective divisive has one meaning:

Meaning #1: dissenting (especially dissenting with the majority opinion)
6.29.2005 1:29pm
Bob Woolley:
For a 1A case involving a public display outside the religious context, see Burnham v. Ianni
119 F.3d 668
C.A.8 (Minn.),1997.

Briefly, the University of Minnesota's student history club set up a display to showcase the areas of special interest and expertise of its faculty members. Each faculty member posed for a photograph with some item that represented his area of specialty. One posed with a pistol (for military history), another with a sword (for Roman history). Some found the display of faculty members with weapons "inappropriate" (the universal word of disapproval). The U had the campus police take down the 2 offending pictures. The profs sued the chancellor. Got all the way to an en banc decision.

In short, the removal of the photographs--ostensibly for purposes of ending the divisiveness they were causing--blew up into a huge deal that cost the university untold thousands of dollars in legal and other costs, and was enormously embarrassing. I was on staff at the U at the time, and I followed the silliness as events unfolded. I'm confident the U officials thought that removing the photos would end the divisiveness and quiet down the kerfuffle. In fact, the dissent specifically notes that the chancellor's actions were because of the "antagonistic effect" and "disruptiveness" of the pictures. Obviously, his action did the opposite. I doubt that a court could work any better as a predictor of what actions will or will not be divisive.

One might also recall the Chicago incident in which a painting of the late mayor, Harold Washington (dressed in women's undies), was seized by three of the city's aldermen. They later claimed in court that the seizure was to prevent a fracas among the city's outraged black citizens. Judge Posner wrote the decision for the 7th Circuit, and it included one of his better punchlines:

"The aldermen's second argument is that they took down the painting in order to save it from destruction at the hands of a mob, or alternatively to spare Chicago the devastating riots that the continued exhibition of the painting might have sparked.... The aldermen's version of the facts is not only contestable and contested, but unsupported. This is clearest with respect to the first branch of the "angry mob" defense, the branch in which the aldermen cast themselves as First Amendment Good Samaritans.... The second branch of the argument — that but for the aldermen's timely intervention, "Mirth and Girth" might have sparked a riot to match that touched off by the assassination of Dr. Martin Luther King, Jr. in 1968 — also depends on contested facts.... The appellants argue that the "heckler's veto" cases involve situations in which the threat of mob violence was latent, and here, they say, the mob was already forming, milling about inside and outside the Art Institute. That is not a correct description either of the previous cases or of this case.... Burn down Chicago over a painting? Paris maybe, but Americans have never taken culture *that* seriously." (Nelson v. Streeter, 16 F. 3d 145 (1994))

Just small anecdotal points in support of Mr. Zywicki's argument that divisiveness is (1) unpredictable, and (2) terrible grounds on which to base first-amendment case law.
6.29.2005 4:58pm
Bob Woolley:
Ah, I'm now remembering another monumental misjudgment as to divisiveness in American religious history (though executive, not judicial). In 1844, Joseph Smith was mayor of Nauvoo, IL, where most of his church members lived. A disgruntled ex-member published a newspaper that exposed Smith's then-secret polygamy. Ostensibly on the grounds that this news would cause enormous outrage in the community (not an unreasonable guess), Smith got the city council to back him in a resolution declaring the printing press a nuisance, and have it destroyed.

Of course, the result was not to quiet unrest, but to feed it. This decision quickly led to Smith's arrest, and while he was in jail awaiting trial, he was murdered by a mob. Soon, the Mormons were forced out of Illinois and settled in Utah.

I'd say that was a pretty substantial error as to what action would be most settling or unsettling to the populace.

(There's a good analysis of the legalities of the city's actions, including constitutional considerations: Oaks, Dallin H. "The Suppression of the Nauvoo Expositor." Utah Law Review 9 (Winter 1965):862-903.)

Bob Woolley
6.29.2005 5:09pm
I suppose many things seem offensive within the Ivy Towers.
6.30.2005 2:01pm
Bill (mail):
Various writers keep saying how we should ignore questions of divisiveness (or other principals that involve judicial speculation about matters “empirical”) and leave the analysis to issues that truly relate to “the law”. This suggestion oversimplifies things.

Lots of jurisprudence, including Todd’s “law and economics of Kelo”, uses social science to consider the expected results of a holding. Sometimes this social science has involved data collection and other times (as with Todd’s Kelo/law and econ analysis) it has been largely conceptual. Sometimes it has been ad hoc and done by judges, while other times it has involved inquiries by scholarly communities and been utilized by advocates (as in Brown v. Board). Whatever you may think of any given law and social science effort, I think it’s misleading to talk about ignoring social science and leaving the inquiry to the law proper.

Even “purely legal” questions typically have factual dimensions where inquiries are useful. Consider applications of the Lemon test:

(A) “secular legislative purpose” That sounds pretty legal. Identifying what the law making body meant to do is paradigmatically legal inquiry, as SCOTUS harped in the KY case. But is the purpose , so identified, secular or not secular? If the court answers this question are they staying within the “realm of the legal” better than if they move on to consider divisiveness as well? Compare inquiry into “discriminatory purpose” with inquiry into “secular purpose”. Concerns about discrimination are at the heart of the concept of justice and, therefore, straightforwardly legal questions. Concerns about what is secular, on the other hand, are a different story. In the KY case, the Court notes that it has been readily determinable when purposes were religious, citing cases that I agree were readily determinable. But deciding the government action in these cases was unconstitutional required reference to “openly available data” (as Souter calls it).

If you consider the inquiries into whether government is (B) neutral toward religion and (C) whether allowing something entangles government in religious questions, you are also making inquiries that require considerable data and interpretations of that data. The only difference between these and the questions of divisiveness are that in these questions all of the empirical inquiry involves considering the role of government (not the effects of government on religious or religious/secular divisions).

Now, we may want our establishment clause jurisprudence to only dwell on the role of government in religious controversies without considering whether that role has divisive effects, but that does not mean that we are “sticking to the law” and rightly sidestepping any relevant issues of principal that empirical inquiries could help us handle better.
6.30.2005 9:15pm