"Divisiveness"

As I mentioned in an earlier post, I'm blogging -- with a dozen or so other law-and-religion folks -- about the Ten Commandments cases for the next few days over at SCOTUS Blog.  I would really appreciate my fellow MOJ-ers' reactions to the decisions, though.  Although the results were entirely expected, and -- in a way -- the cases break little new ground, there are so many things "going on" in the various decisions that are interesting and provocative.  For me, the most striking (for now, anyway) thing to come out of the decisions is Justice Breyer's putting at the center of the Establishment Clause inquiry his predictions and observations about "political divisiveness" and "social conflict."  In his view, it appears that avoiding social dissension is more than a policy desideratum or a prudent aspiration. It is, somehow, a fundamental, judicially enforceable religion clause "principle".  This view takes us back to then-Chief Justice Warren Burger's statement, in the landmark case of Lemon v. Kurtzman (1971), that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect."  Burger foresaw "considerable political activity" on the part of "partisans of parochial schools," and would have none of it.  Such activity, he feared, "would tend to confuse and obscure other issues of great urgency."

As I've said before, it is not clear why our political, cultural, and other "divisions" should be relevant to the legal question of whether a particular policy is constitutionally permissible.  In fact, there is something unsettlingly undemocratic about the notion that the First Amendment authorizes courts to protect us from “confusion” or privileges judges’ sense of political "urgency."  Even Chief Justice Burger conceded in Lemon that "political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government."  Judicial squeamishness toward messy politics is hardly a reliable constitutional benchmark.

Eugene Volokh's question, I think, is an important one:

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?

And, there seems to be a lot to Sandy Levinson's statement that "we have a Supreme Court (and, of course, they are not unique in their perceptions) that is basically terrified of politics and the potential for genuine conflict that a serious politics can generate."

Thoughts?

Rick