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"Crossover Sensation, Justice Breyer":

It's one of my favorite lines about Supreme Court Justices, and it seems especially apt today, given Breyer's joining the conservatives minus Justice O'Connor to uphold one of the Ten Commandments displays that the Court was considering. (He didn't fully cross over; rather, he applied what seemed like O'Connor's endorsement test, but reaching the opposite result than O'Connor did. Still, when the name of the game is counting to five, Justice Breyer's vote is crossover enough.)

John Elwood, then at Baker & Botts, deserves credit as the line's author.

Divisiveness and the Ten Commandments Cases:

The opinions joined in these cases by Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer routinely stress that Ten Commandments displays and the like often threaten to produce "religious divisiveness," and that the Establishment Clause should be read as making such divisiveness into a reason for invalidating (at least some) government actions. Past Supreme Court cases have made similar claims.

But I wonder: What has caused more religious divisiveness in the last 35 years -- (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court's decisions striking down such actions?

My sense is that it's the latter, and by a lot: All these decisions have caused a tremendous amount of resentment among many (though of course not all) members of the more intensely religious denominations. And the resentment has been aimed not just at the Justices but at what many people see as secular elites defined by their attitudes on religious matter. The resentment is thus a form of religious division, and I've seen more evidence of that than I have of religious division caused simply (i.e., setting aside the litigation-caused division) by the presence of Ten Commandments displays, creches, or even graduation prayers.

Isn't there something strange about a jurisprudence that in seeking to avoid a problem (religious divisveness) causes more of the same problem, repeatedly, foreseeably, and, as best I can tell, with no end in sight?

Now it may well be that the Court's actions are justifiable under some other theory. There may well be some other reason why government use of such religious symbols must be struck down despite the religious divisiveness of such government actions. But it seems mighty odd for the Court to strike the actions down in the name of a goal -- avoidance of religious divisiveness -- that the Court's actions are themselves undermining.

I should stress that I am not trying to take in this post, or other posts, a definitive view on how the Establishment Clause should be read in cases involving government use of religious symbols or statements. Rather, I'm trying to provide what I hope are helpful comments on particular arguments that I've heard -- comments that might be of use to people who are drawn to different bottom lines. I've found somewhat more to criticize in the no-posting-of-the-Ten-Commandments opinions today than in the OK-to-post opinions. But please take my posts for what they are, which is specific comments on specific arguments, not overall judgments on the matter.

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Discussion on the Ten Commandments Cases at SCOTUSblog:

I expect the others' posts there to be excellent -- do check it out if you're interested in the subject. I'm posting a bit there myself, as well as here; my apologies for any duplication that you'll see if you're reading both that discussion and this blog.

Ten Commandments and Modern Law?

I thought I'd repost something I discussed a couple of years ago, related to one particular argument about the Ten Commandments. This is not a core argument in the opinions in these cases, but it's popular enough that I thought I'd speak to it here.

I have often heard it said that the Ten Commandments are an important part of the foundation of American law, and I think that's true to a point. But here's a quick question for you: How many of the Ten Commandments are actually implemented as legally binding obligations under modern American law? (To avoid confusion, let's focus on the list in Exodus, chapter 20, King James Version, available here.)

It turns out that the answer today is pretty much three, #6, #8, and #9:

1. "I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage. Thou shalt have no other gods before me." This is fortunately not legally enforceable; in fact, the First Amendment would prohibit the government from enforcing this.

2. "Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth. Thou shalt not bow down thyself to them, nor serve them . . . ." Again, this is fortunately not legally enforceable, neither as to the prohibition on graven images, nor on the visiting of the fathers' sins upon the sons.

3. "Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain." Some states have enacted blasphemy laws in the past, though to my knowledge they've generally been limited to public blasphemy. Fortunately they are not enforced today.

4. "Remember the sabbath day, to keep it holy. Six days shalt thou labour, and do all thy work: But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates . . . ." This is generally not the law today; some states still require some businesses to be closed Sundays, but there's no general prohibition on work on the Sabbath -- no-one is going to arrest you for working from home on Sundays, and that too is very good.

5. "Honour thy father and thy mother . . . ." Not legally enforceable.

6. "Thou shalt not kill." Legally enforceable, though of course with the usual qualifiers.

7. "Thou shalt not commit adultery." Not in practice legally enforced today, though I believe that some states do still have criminal prohibitions on adultery on the books. There are plausible arguments for enforcing these prohibitions, and also for considering adultery in various civil contexts (in property settlements in divorce and the like), though I think that on balance the current approach is better for a wide range of practical reasons.

8. "Thou shalt not steal." Legally enforceable.

9. "Thou shalt not bear false witness against thy neighbour." Legally enforceable, at least in a wide range of contexts (such as perjury and libel).

10. "Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour's." Not legally enforceable -- can you imagine a law prohibiting coveting?

So there it is: Many of these rules may be morally good, and all may be theologically important to some people. But only three (no killing, stealing, and false witness) are currently enforceable under American law, though there are plausible arguments that adultery should also be included.

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ScrappleFace on the Ten Commandments.

Excellent.

Nifty Prose,

from Justice Souter's opinion in the Kentucky Ten Commandments case (paragraph break added):

The Counties' second proffered limitation can be dispatched quickly. They argue that purpose in a case like this one should be inferred, if at all, only from the latest news about the last in a series of governmental actions, however close they may all be in time and subject.

But the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government's actions and competent to learn what history has to show. The Counties' position just bucks common sense: reasonable observers have reasonable memories, and our precedents sensibly forbid an observer "to turn a blind eye to the context in which [the] policy arose."

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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.

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Coming Soon to a Ninth Circuit Near You:

Here's the Ninth Circuit's logo:

The Ninth Circuit is being sued on the grounds that this violates the Establishment Clause, because the tablets allude to the Ten Commandments and thus endorse religion. How will the case come out in light of today's decisions?

Please comment only if you have read the decisions. I'm looking for actual legal analysis (even if it's motivated by a desire to expose the errors in one or another position). No general fulminations about those awful Justices/politicians/whoever (whether Left, Right, or pox-on-both-their-houses), please. Reference to recent lower court cases is perfectly fair game — there was one recent one that is potentially on point — but it would be especially interesting to see how today's cases affect the result.

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Breyer's God and Bright-Line Rules:

A New York attorney of my acquaintance observed the following:

At one point in his concurring opinion in the Texas 10 commandments display case, Justice Breyer refers to "the Diety." He spells it "Deity" elsewhere in the opinion. Apparently bright-line rules are not appropriate in this sensitive area.

Justice Scalia and Monotheism:

On many occasions, opinions that aimed to uphold government religious speech against Establishment Clause challenge have stressed that such speech was "nondenominational," or have argued that the Establishment Clause bars discrimination among religions — even in government speech — but not discrimination in favor of religion generally.

But this was always something of a fiction. Every reference to "God" carries a theological view that excludes not just atheists but also polytheists (such as Hindus and Shintoists) and religious people whose religious views don't involve a God (such as Buddhists). There are no nondenominational religious statements, except perhaps in jokes of the "whoever You are, male, female, neuter, animate, inanimate, many, one, existent, or nonexistent" variety.

To his credit, Justice Scalia's dissent in McCreary acknowledges this, suggests a dividing line (endorsement of monotheism is fine, endorsements of specific monotheistic religions is not), argues that this line is supported by original meaning and history, acknowledges that this may offend people who adhere to nonmonotheistic religions, but argues that this shouldn't pose a constitutional problem. Yet the liberals rightly ask: Why does this history so clearly support a constitutional preference for monotheism (which includes Christianity, Judaism, and Islam) but not for Christianity specifically?

Scalia points to a good deal of historical evidence (in my view very powerful evidence) that the Framers and subsequent generations endorsed some government religious speech. And he explains his "monotheism" rule by pointing out that the speech generally referred to "God" or versions of that, and not "Jesus Christ."

But there were quite a few contemporaneous state constitutions that preferred Christians over non-Christians (some preferring Protestants over non-Protestants). There was influential commentary in the 1800s saying that the Constitution tolerated endorsement of Christianity specifically; and Justice Scalia has long stressed the importance of post-enactment interpretations as well as of the original meaning. More broadly, when Christians talk about "God," they may be doing this not because they understand there to be some "endorsement of monotheism OK, endorsement of Christianity forbidden" rule, but because their Christian theologies (or even their esthetics) leads them to use the term "God" in certain contexts more than the term "Jesus Christ."

Jack Balkin cricitizes Justice Scalia on this score, and while I don't entirely agree with his views, it seems to me there is much to them. Certainly an originalist may well conclude that, whether he likes it or not, government endorsement of Christianity is permissible. But Justice Scalia's position that the Establishment Clause tolerates endorsement of monotheism but not of Christianity, while more palatable to many today (likely including Justice Scalia himself), is also less persuasive as an originalist matter.

UPDATE: Rick Garnett defends Scalia at SCOTUSblog.

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