van orden v perry and scalia and breyer and concurring opinion

Ironies abound when you begin to scratch below the surface of the Court's Establishment of Religion cases. In addition to the fact that there are at least twenty or thirty standard principles or important observations about religion and American life, at least one or more of which are religiously saluted in each case, there are also the ironies in some of the Justices opinions. For example, Justice Scalia, the one who most consistently and insistently speaks about developing a "principled" approach to First Amendment jurisprudence, is usually the biggest offender in pursuing frolics of his own in trying to figure out what the Amendment means. His 1990 opinion in Smith v. Employment Division was considered so off-base that the Congress had to get into the act to correct it not once, but twice (other pages deal with these Acts); his 2005 dissent in McCreary County articulates a principle (that the First Amendment supports monotheism, thus including Christians, Jews and Muslims under its protections but not atheists or polytheists) that is so "remarkable," as the majority calls it, that they must have been scratching their heads. Thus, whenever Scalia speaks of "principle," hold your hat: he is usually signalling a radical departure from anything the Court has conceived previously.

Justice Breyer's Concurrence

Then, there is the irony of Judge Breyer's opinion in this case. Recall that Scalia is all "principle," at least rhetorically. Then, Justice Breyer wades into the fray, giving the majority their fifth vote, pushing Justice O'Connor temporarily off the "swing vote" seat, and doing so on the basis of what even the most charitable person would not call "principle." You know that he is grasping for some interpretive template when he quotes Harlan and Goldberg in these words: there is "no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible." After this helpful start he says, "the Court has found no single mechanical formula that can accurately draw the constitutional line in every case." So, how does he "draw the line" in this case? By using what he calls "legal judgment." I hope so. And where does his "legal judgment" take him? Well, he admits this is a "borderline case." But still he has to decide. On what basis?

He looks at two factors. First, he looks at the display's placement on the Capitol grounds. It doesn't appear that the religious aspects of the message predominate. After all, the Eagles donated the monument to emphasize the Commandments' role in "shaping civic morality," though it quite nonplusses me as to how a monument on the state house grounds does that. Do the juvenile delinquents of Texas take busses to the Capitol, then get guided tours to the monument, where they solemnly read the inscribed words and vow to give up their delinquent ways? Well, no mention of that. But he says that the message is therefore "predominantly secular." Now it is the time for Justice Scalia to roll his eyes, though he can't do so very visibly, since Breyer gave the vote to make the monument constitutional.

And, his second factor? The fact that 40+ years have gone by without a substantial legal challenge to the placement of the monument. While this, too, is not dispositive, Breyer notes it. His sentence saying why the 40-year unchallenged period probably means that there is no intimidation and therefore no establishment of religion, is a monument to qualification, equivocation and tepid endorsement. I put it in bold:

"Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a govenrment effort to favor a particular religious sect, primarily to promote religion over nonreligion, to "engage in" any "religious pratice," to "compel" any "religious practice," or to "work deterrence" of any "religous belief."

If there are any principles at all here, I am not aware of what they are. Maybe we should just drop the word "principle" from our legal language. Now can you understand why I just had to go work out and found more pleasure writing a poem on a bead of sweat than in doing my legal work?

More

The thing about Supreme Court cases is that you can go on forever commenting about them and then feel, at the end of the exercise, that you have contributed absolutely nothing to human thought. I will mercifully, then, not review Justice O'Connor's approach, where she wants to breathe life into a "civic" or "ceremonial" type of religion; or Justice Thomas' interests in collapsing the clauses to a coercion test, and collapsing the coercion test to something akin to a gun to the head (and then, on occasion, where he wants to argue that the Establishment Clause was improperly "incorporated" into the 14th Amendment about 60 years ago), or Justice Stevens' stinging dissents or Justice Souter's patient exposition of how Rehnquist is misreading most of the Court's precedents. At the end of the day, to use an overused cliche, the Supreme Court's religion decisions are little more than a mush or stew of unresolved first principles. But, maybe that reflects the American people and their approach to religion, too. It is very important, but people don't want to feel "coerced" by religion. They want to celebrate it, but don't want to feel that religion is just a "private" affair. In any case, I have said enough on the Commandments for now. I am sure that makers of 10 Commandments monuments are churning them out like crazy now, both for private usage and for state house grounds. It would be interesting to administer a test to the supporters of the Commandments, to see if they can mention all 10. Or if they know the differences between Exodus and Deuteronomy; or why they are partially abbreviated on the monuments; or which translation is used and why. But now I am getting into the American psyche, a place which isn't safe for me to go...

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