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
While the texts of the two Ten Commandments decisions are not yet available on line, I have read a number of news reports on the internet media services. From one perspective, it seems (and I emphasize this point) that the majorities in both cases endorsed an analysis reflecting what I call “the formulaic calculus of the candy canes” from the Rhode Island crèche case. Whilst the Court still does not offer some proportion regarding the legal percentage of religious items in a display, it would once again appear that if the secular outnumbers the religious items, the display passes Constitutional scrutiny. In the case from Texas, the ratio is 16 or 17 non-religious items to the one religious item. I have not been able to determine what else graced the halls of the courthouse in the Kentucky case. In this context, I find what seems to be at the core of Justice Scalia’s concern to have merit: how does such a ruling serve the rule of law and the development of a principle that can be uniformly applied? The point is highlighted by the fact that the Court appears to indicate that the legality versus the illegality of the display must be ascertained on a case-by-case basis. Like other MOJ participants, I look forward to reading the opinions when they become available. I am certain the subsequent commentary will be enriching. RJA sj
As everyone knows by now, the Supreme Court voted 5-4 against a particular Ten Commandments display in a Kentucky courthouse, and 5-4 (a different majority) in favor of another Ten Commandments display on the lawn of the Texas state capitol. The opinions are available, as is lots of good discussion, at SCOTUS Blog, where a number of First Amendment scholars (including me) are participating in a conversation about the case. Here is my first post. Check it out.
Rick
Sunday, June 26, 2005
Given the to-and-fro on this blog about the recent takings case, MOJ readers may be interested in what Nobel Laureate Gary Becker and law-and-economics guru Richard Posner have to say, on their blog, about the power of eminent domain: here and here.
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mp
Okay, last post for the day (it's too hot for the pool, and the Yankees-Mets aren't on til 8:20, so I blog). In my last post I quoted extensively from a review In the (London) Times Literary Supplement. I don't know how many of our readers read it regularly, but I've beem subscribing for several years and find it terrific. I'm not particularly an Anglophile, but it is a change of pace that is definitely worth its pricey subscription rate. Of most interest to MOJ is its regular and very sophisticated reviews of new books on religion and theology -- much better than anything I've seen in similar pubs in the US. They review more books and different books in those fields, and they are often reviewed by people within religious traditions, rather than by people who don't quite know what to make of this slightly distasteful religious stuff. For example, they published a review several months ago of a very interesting book fr Univ of Notre Dame Press by Christopher Insole, "The Politics of Frailty: a Theological Defense of Political Liberalism," which has not yet received any attention in the US non-specialty pubs (though I'm working on a review for Commonweal). The TLS also just published (6.10.05) a devastating critique of the DaVinci Code -- not a new topic, but done with an extraordinary thoroughness by the Professor (Emeritus) of Crusading History at the Univ. of Nottingham (now that's an academic title !). Surprisingly, the TLS is both more academic and more fun to read than my other favorites, the NYRB and the New Republic, and light years beyond the increasingly puffy and lower-middlebrow NYTimes Book Review. It also has two odd, but very interesting regular essayists, Hugo Williams and Michael Greenberg, and the reviewing style also has a kind of polite savagery that is far more entertaining than the painfully earnest critiques found in American reviews. The Letters also have an edge and wit that make the snarkiness of the American blogosphere look like the sophomoric heavy-breathing that it usually is. So, the TLS is my pick of the month (plus, you can read it at the beach or the pool!)
--Mark
