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.