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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My advice to states wishing to erect 10 Commandments or similar monuments would be to hire pornography defense lawyers from the 1960s and 1970s for advice on how it's done, because their ouevre is now the state of the art in this area. All the standard tricks -- double-entendres, making sure that religion scenes are embedded in a secular plot, quantitatively measuring the work to ensure that religious content isn't a majority, coming up with secular themes and purposes to lay over the religion scenes -- all of this would be familar to anyone with any knowledge of obscenity law and the shifting standards the court used in attempting to figure out how to suppress works with improper themes without too greatly restricting expression perceived as legitimate.
I have a personal distate for "I know it when I see it" attitudes. To me, it bespeaks a claravoyant sollopsism fundamentally disrespectful of other people, who are equally capable of 'seeing' how things should be through gut feel and have equally strong if different views. By abandoning principle, precedent, history and textualism, Justice Breyer's opinion leaves only power. Because it abandons all the institutional constraints which protect the Court from naked legislative control, it all but invites Congress to appoint folks solely for their agreeable personal (sorry, "legal") views.
Go ahead and try it! Seriously! Read some of the old obscenity cases, cross out the word 'sex', write in the word 'religion' in crayon, and see if you don't get something astonishingly identical to the Supreme Court's current religious-monument jurisprudence!
I would also invite comedians everywhere to make fun of the Court for making its analysis of obscenity and religion almost identical. Sometimes, the best thing one can possibly do for ones country is to hold up to ridicule that which is truly rediculous.
As for your comment about resentment being aimed at "secular elites" who are trying to destroy religion, this is more a result of a cynical effort by people like Pat Robertson, Jerry Falwell, and George W. Bush to create such feelings so that they can be exploited in elections. Recall the flyer being passed out in Arkansas by the Bush campaign saying that Kerry would ban the Bible --- such a flyer would not be taken seriously at all if people like Robertson, Falwell and Bush did not completel misrepresent the effect of court decisions and create a judicial "bogeyman" ready to destroy religious people.
I think the point is that it is their country, their public space, too.
EV,
Interesting point. Your implied criticism is that the justification is inadequate or poorly phrased, and this may well be.
That said, it seems odd to lay blame at the for divisiveness at the Court’s feet. Was the Court to be ‘blamed’ for the chaos that followed Brown? Surely the Court’s activity there was a ‘but-for’ cause, but that is not the whole story. Nor is, I think, the Court ‘to blame’ here – if pro-Commandments advocates cannot accept a society in which they do not dominate, then whose fault is the resultant tension when the Court steps in to defend the minority?
Brilliant insight. Perhaps a narrower corrolary of "The law of unintended consequences," is needed. I propose:
"The law of opposite effect"
Meaning, in essence, by trying to remedy A, you induce more A.
One could argure, in the political arena, that this has happened with McCain-Feingold (seeking to reduce influence of $$ in politics, Mc-F has induced more $$ in politics)
But, so what? We don't live in a country where a majority of people are Catholic or Lutheran; we live in one whose historic roots trace back to another tradition and it is useful to remember those roots, inasmuch as we owe so much - freedom, democracy, the rule of law - to that history.
I've never been threatened by living in a majority Protestant country. If anything, the cultural differences between my faith tradition and that of the majority have enabled me - and I suspect other members of religious minorities - to keep in mind the significance of those sometimes subtle differences between traditions. For example, when I listened to a Baptist give a baccalaureate address, I listened with bemused appreciation. It didn't appeal to my cultural tastes, but it appealed to people I like and respect, so God bless them all. All of which is suggestive of the fact that Justice Scalia had it right in his dissent in Lee v. Weisman when he said that exposure to other religious traditions cultivates the civic virtue of tolerance.
On the flip side, as a religious person I recognize that these decision express a stigmatizing attitude toward relgion; these decisions imply, or explicitly say, that religion is a virus that can infect and harm if it is not carefully contained. And, on that point my hackles rise because a real divisivion is being made between Believers and Secularists, with the Supreme Court picking the Secularists as the winners.
The First Amendment only prohibits Congress and the 14th only prohibits State Legislatures or their instrumentalities from making such laws, but is the Court free to do what legislatures may not?
One thing I will point out is that there is at least some distinction to be made between affirmative government acts and negative prohibitions.
A rule that the government should not advance or hinder religion is divisive inasmuch as it displeases some people who would like for the government to do more. That is, government inaction displeases them, and they want the government to actively promote religion (IMO).
Whereas a local government posting the ten commandments is divisive inasmuch as it establishes the government as being actively pro-religion.
Put another way, I see one side that wants government to actively advance religion, and another side that wants government to neither advance nor hinder religion. Both positions are divisive, because they are mutually exclusive and no compromise will please both sides. However, I see an important distinction between divisive government action and divisive government inaction.
Your mileage may vary.
I am reminded here of Phillip Roth's Operation Shylock, where the narrator praises Irving Berlin as being more inspired than Moses: Berlin wrote White Christmas and Easter Parade, songs that de-Christed Christmas and "if that is what it takes to make my people comfortable in America, let it snow, let it snow, let it snow!"
When any particular individual asserts their right to free exercise, does that entitle the person to a comfortable mandate for that exercise to occur on government property. I think the assertion of such entitlement is the divisive act. Or perhaps let's just always blame the non-religious person who feels entitled to not be exposed to (or be required to subsidize or be seen as a supporter of) religious displays. No one has suggested closing down any churches or arresting any prophets or missionaries. Simply, the government should avoid contact. And believers should respect that avoidance.
A. Weren't the words "under God" added to the pledge of allegiance only recently (i.e. in the 50's as some sort of cold war condemnation of those godless commies)?
B. There are a lot of unsubstantiated claims being made about the prevalence of religious displays on government property in the past. Anyone got some actual facts?
If this argument is sound, then what would prevent a men's rights litigant from arguing that the balancing test in Doe v. Bolton (always in favor of the woman) is a denial of Equal Protection? Or that child support laws violate Equal Protection so long as women have a unilateral right to abortion, because a hypothetical woman's female sex partners are not targeted for income redistribution, but her male sex partners are, simply because of the natural and probable consequences of their biological capacities, i.e., inability to generate sperm and fertilize a woman during intercourse. This undue burden, one could argue, on heterosexual male intimate association is not imposed on lesbians, female bisexuals, or homosexual men. Thus the balancing test in abortion rights cases and child support policies (always favoring the mother) singles out male heterosexuals for their ability to produce sperm and the kind of sexual activity in which they choose to engage. If you engage in sexual activity that tends to fertilize, you pay; if you do not, you don't.
I do not mean to be controversial, but this seems the logical conclusion of Professor Volokh's argument.
When these displays are prohibited, no one could reasonably thereby feel the chill of religious discrimination breathing down their necks, or the necks of their descendants; the proliferation of displays does have that effect.
In the absence of the displays, Christians need not feel any less proud of their religion. They are merely deprived of a redundant symbol of the power of their co-religionists in state government (in Texas and Kentucky, remember). They claim that Court prohibitions discriminate against them. But they do not have standing to make that claim in court. Only the state itself, or its officials in their official capacity, may defend these displays.
Is Breyer really saying that divisiveness around the private water cooler is to be avoided by the Court's First Amendment decisions? No, I think he's talking about divisiveness wherein a faction is colored *by the state* as more or less pious than another.
I think Mr. Volokh misses the point.
Also, it's not at all clear to me that Eugene can accurately estimate net divisiveness by observing how much public complaining goes on. As carpundit observed, much of the division caused by the displays goes unremarked, but it's real nevertheless.
I'm sure that there were areas where one could find much more easily observable divisiveness caused by the removal of Jim Crow laws than before that removal, but did the total divisiveness increase?
If we remove trade restrictions there are often many more obvious job losses than gains that are directly attributable to the new trade, but I don't think Eugene would argue that this implies that free trade causes more job losses than gains.
I haven't read today's decisions yet. I am somewhat religious, I am not Protestant. I don't know what kind of monument I'd feel comfortable with to say "Law is good. Even imperfect laws, and in some societies even laws that lack Establishment and Free Exercise clauses, are better than anarchy. Regardless of how we got the Ten Commandments, their mythos, including the iconic two tablets, are the foundation of the earliest in the chain of bodies of law that got us where are secular law is today."
I suppose I'd be less comfortable with busts of Isaac Newton if there were people today who were actively trying to kill other people for heretically believing that Relativity better describes the Universe than does Newtonian mechanics.
I would disagree. Plenty of Christians would consider displays of non-Christian religious symbols or activity to be something that can "infect and harm if not carefully contained."
For example, certain Congressmen have objected to the fact that Wiccan military personnel observe their religious ceremonies on bases. (I think Tom Delay was one.)
There's always going to be people who believe that some or any other faith is error (or downright evil), and should be controlled, lest anyone be led astray.
It isn't really a religious vs. secular issue. It's actually a religous vs. religious issue.
Come now, Professor Volokh, it's the American way! Just look at all the attention we give our national miscreants in our outrage over all the things they do for attention.
I always thought the hurt-feelings or religious-divisiveness or informal-coercion arguments were unnecessary. The real basis for these decisions is that part of the First Amendment that says government doesn't get to tell you when or how to pray. If adherence to that principle causes difficulty, it's still worth it for the principle.
I hate to bring up South Park, but this whole debate sounds suspiciously like that episode where the town is trying to put together a Christmas pageant. First, it starts off with the nixing of the nativity scene because it offends non-Christians. The Santa &Reindeer go (offensive to Christians). then Christmas trees (environmentalists), followed by lights (people with epilepsy), followed by pretty much everything else. The result of this is a mishmash of nothing (to the tune of a Phillip Glass minimalist solo). If everyone has the right to see the public square purged of anything they deem controversial or offensive, then eventually the public square will end up barren and hollow, and a vital part of our community will be lost.
I suppose what gets my goat about this whole subject (and why the whole thing is divisive) is that much of the anti-commandments position is based on subjectivity, emotion, and ultimately, pure solipsism. Grievous offense is taken, even though none is offered. Feelings become the sole determinant of constitutional law. I thought the law was made of sterner stuff.
I'm a Christian, though not aggressively so. (I thought Roy Moore was an ass for trying to keep the rock in the Alabama Supreme Court, introducing the 10 Commandments where they were not present before.) What I object to is this arrogant attitude that every last jot and tittle of religion needs to be scrubbed out of the public square lest the feelings of a tiny, delicate minority be bruised. Those 10 Commandments plaques are there because people purposely put them there as reminders of the ideals they thought the law should aspire to. Agree or disagree, it's history and tradition. (Or as G.K. Chesterton put it, "the democracy of the dead...[that] which refuses to submit itself to the small and arrogant oligarchy of men who simply happen to be walking about.") Just because some of us take offense at them does not mean we would be justified in ripping them out, any more than the Soviets were justified in airbrushing photos and erasing records, or the Spaniards were justified in burning the Aztec Codices, or the Taliban were justified in destroying the Bamiyan Buddhas. Those who forget the past, and all that...
P.S. I thought Scrappleface put it perfectly when they posted the disclaimer that SCOTUS mandated for the 10 Commandments: "Display of this historically-significant collection of laws shall not be construed as an endorsement of the God who may, or may not, have spoken them, nor of the existence of such a God, nor of the legality of the laws. Citizens may observe and obey these commandments at their own risk. Please consult your family attorney before embarking on any law-abiding regimen."
As for the "remembering history" argument, I would point out that it depends on who gets to write the history. Many on the right want citizens to know that the Founding Fathers were all devout evangelical Christians. However, I don't think this is true.
It is not a question of hurt feelings, it is a question of triumphalism/legitimacy.
The non-Commandments crowd objects substantively to the posting of the Commandments, in part because the very message of their posting is "We own this space", with the implied "You do not."
If I can invoke an example from Northern Ireland (a subject of which I have only newspaper level knowledge, so forgive the specifics, if the contours are accurate), during marching season, royalist socieities wear orange and seek to march through republican neighborhoods to commemorate 17th century victories. Much tumult ensues. Why? Because the republican's rightly interpret the message of the march..."It is our country. We can march down 'your' streets and celebrate a victory against your predecessors. You do not belong."
This is, I believe, a reasonable interpretation of Commandment posting -- an attempt to occupy the public sphere for the God of Christians (and others technically, but let's be real). The division comes not from the Court's response, but from the message behind the action in the first place.
Actually, the big stone monuments, like the one in the Texas case today, were placed as a publicity stunt to promote the movie "The Ten Commandments".
I'll second "A2 Reader"'s statement.
Much of the time, posting 10 Commandments monuments seems like marking territory.
Note that they never seem to want to post the golden rule, or anything from the New Testament. It's always got to be the 10 Commandments, which includes "thou shalt have no other God before me".