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.