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.

From the Washington Times today:

A 70 percent majority

Seventy percent of Americans would have no objection to posting the Ten Commandments in government buildings, and 85 percent would approve if the Commandments are included as "one document among many historical documents" when displayed in public buildings, according to a survey conducted for the First Amendment Center. The State of the First Amendment survey, conducted since 1997, samples the American public's opinion each year on a variety of First Amendment issues. The U.S. Supreme Court ruled Monday on two cases, from Kentucky and Texas, concerning Ten Commandments displays. In a case involving Kentucky courthouse displays, it said county officials crossed a constitutional line and were, in effect, endorsing religion even though other documents were added. But in the Texas case, the court approved an outdoor display where the commandments are part of a larger exhibit on the grounds of the Statehouse that recognized the history of the nation's legal system and religious heritage.

The full survey is available here (the 10 Commandments questions are at pages 10-11).

Overall, if the divisiveness of religious displays is the test, this doesn't seem very divisive to me, especially when compared to much political rhetoric. Nor does this survey evidence bear out the assumption that the "greater diversity" of American religious belief today makes these displays more divisive or controversial than traditionally. And one suspects that if the survey results were broken down by geographic region, it would be even less divisive in many red states. Having lived in red states most of my adult life (unlike most members of the Court, I suspect), I can tell you from personal experience that these sorts of displays simply are not controversial or divisive in any meaningful way, especially when compared to other elements of the public dialogue.

So while America's legal and intellectual class seem to believe that public religious displays are unusually divisive or offensive in modern America, there seems to be little evidence to support that view. Indeed, I would be hard-pressed to come up with any other proposition in the public debate today (tax cuts, social security reform, war, etc.) that would meet with public approval of 85% of the public that they would "strongly" or "mildly" agree that a public official could take a particular action.

My personal view is that the Court should probably just scrap any further discussion of the purported divisiveness of religious displays and stick to law, rather than second-rate sociology. I don't see that it really adds much to the analysis in the first place, so not that much would be lost and perhaps some intellectual integrity would be gained. The divisiveness inquiry is utterly intellectually vacuous, unsupported by any serious social science evidence of which I am aware, and for most of the country, by common, everyday experience. Indeed, as Eugene has noted, it is quite probable that the Court's efforts to try to police the proper boundary lines of divisiveness probably has created more divisiveness on religious issues than it has solved. On the other hand, if the Court (and academics and commentators) want to stick with the argument that religious displays are unusually "divisive" relative to other elements of public discourse,they should actually come up with some empirical evidence to back it up, rather than pretending that it is anything more than their personal bias and experience.