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Monday, June 27, 2005
The Start of the Ten Commandments Group-Blog
Ten Commandments | Posted by Marty Lederman at 01:46 AM
The Court is expected to issue its decisions in McCreary County and van Orden later this morning. As Tom has noted, nose-counting suggests that Justices Scalia and Souter are writing the two opinions, in which case it might the case that the Court (Justice O'Connor?) has concluded that one display is constitutional and the other is not.
This is the start of a "group blog" on the decisions. In addition to discussion of the decisions themselves, and their doctrinal significance, I'm hoping that our discussants might consider two other, "meta"-questions:
First: Do these sorts of "public religious symbolism" cases matter? Over at her blog, Ann Althouse writes: "I think it's very bizarre of us to regard the Ten Commandments case as the big case. . . . [I]t really just isn't that important whether there's a monument amid other monuments somewhere on the state capitol grounds or a framed text amid other framed texts on a courthouse wall. . . . There are ideologues who want to purge religion from the public eye who care [how the Court decides this particular case] and religionists who want to intrude a lot more of it who care. If either of these groups were getting very far, I would care about the outcome in the cases that would arise. But the displays at issue in this case are inconsequential. Still, they are too much for the extreme secularists and just the beginning of what extremists on the other side would like to see. The Court needs to draw a good line that fends off both extremes. I don't care which side of the line the particular displays at issue in this case end up on.... I ... think the [Establishment Clause] extremists are blowing [this case] out of normal proportion. Everyone needs to learn to get along, and those who want to purify things too much don't impress me. Sure, they'll be put out if the government wins in these cases. I don't think people who take great offense easily should be driving the outcomes.... I think most atheists ... and many religious people ... accept and even enjoy seeing evidence of other religions around them. It's part of art and history and culture -- part of the beauty of the world that we live in (either by the grace of God or by pure, weird chance)."
Reactions to Ann's provocative take?
Second: Have liberals and progressives made a significant error -- in terms of their long-term interests -- in expending energy on such "government religious symbolism" cases over the past generation or two, even if such cases have (from their perspective) resulted in improved Establishment Clause doctrine? This question is prompted by comments of Burt Neuborne at the Amercian Constitution Society "Constitution in 2020" Conference, and on the Conference blog. Notwithstanding the fact that Burt has litigated countless cases involving creches, decalogues, etc., he writes that "one final staple of the progressive judicial agenda may not be worth defending at all -- the religious symbolism cases may do nothing but enrage voters who might be [our] natural economic allies." Is Burt onto something important? And, if so, where should we progressives draw the line? I assume, for example, that Burt does not mean to include in his indictment the cases dealing with elementary schools, such as most importantly Engle and Schempp, even if (as is likely the case) those decisions did more to turn voters away from the progressive agenda than all the others combined. But perhaps he does. And what about Lee v. Weisman, the Santa Fe football-prayer case, Newdow, etc.? (In this same general vein (although not specifically pertinent to the Ten Commandments cases), see also Bill Marshall's candid recent article in the Notre Dame Law Review, in which he argues that "the tension between the constitutional commitment to anti-establishment and the societal need to engage in collective religious exercise can be accommodated by a doctrine that allows for government support for religion in limited and exceptional circumstances," and that "there may be moments of national crisis and grief when instrumental values pale and it becomes constitutionally permissible to pierce the secular veneer.")
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Comments
I tend to agree that most of these cases are much ado about very little. One thing I've noted, however: to the extent that the religious argue that the public prayer (before a football game, for example) is extremely important, it becomes less defensible under the establishment clause. If, instead, it is realized that most of the audience is munching popcorn, watching the cheerleaders, or aching for a great kickoff return, and ignoring the "preaching" in the guise of prayer, it becomes a formality like the inscription on the coins, and offensive to none but the extreme.
Posted by: Ron at June 27, 2005 11:26 AM
I think that Justice Thomas's concurrence in Perry got it about right; the current rule makes neither extreme happy; it's inconsistently applied, and inconsistent with the text of the Constitution. I also think that he correctly identifies the heightened sensibilities of atheists regarding marginal religious displays, particularly in connection with the pledge of allegiance and "In God We Trust" on our money. I'm unconvinced that a pure coercion test would be better overall, but it would be more markedly consistent.
Posted by: Scipio at June 27, 2005 12:36 PM
Ron, I disagree with your position and that of other posts regarding the significance of prayer at public school events and the posting of the Ten Commandments in a court house, though I'm not sure you intended your comment to extend to the latter.
The fact that many ignore such prayers because they are so commonplace simply gives people of other religions the message that Christianity in particular or religion in general is an accepted and essential part of public life. Also, others might not be paying attention, but my high school friends who were taunted, and even beaten up, due to their Judiasm, were paying attention, I assure you. One of them was a football player to whom the coach referred as "Jew Boy". So in the context of ongoing discrimination, school prayers remind those in the minority of their status.
As to the court house situation, squeeze your eyes closed and ask what it would be like to be dragged into a court with the 5 Pillars of Islam posted or pages of the Koran, especially if you were accused of something likely to at least personally offend Muslims (like shaving off your facial hair or wearing shorts). Would seeing those symbols and words bolster your confidence in receiving a fair trial? I think not.
The purpose served in inlcuding prayer and religious symbols under the circumstances at play above is not compelling. Presumably no one has ever been convinced to actually follow the Ten Commandments just because they were posted on a court room wall (I mean if you are there as a defendant, isn't the timing a little off there?). No one has ever lost their faith because there was not a prayer shouted over a loudspeaker at a game. There is no reason to protect this kind of thing.
I am Chistian by background, if that makes a difference. I don't consider myself exteme in any way, and agree that as a society we are spending way too many resources on this battle.
Posted by: Kim at June 27, 2005 12:40 PM
I doubt that anyone would describe this case as an "inconsequential" squabble among "extremists" if the only religious monumuent on the grounds of the Texas Capitol was a six-foot-high monolith representing the Koran and inscribed with the phrase, "I am Allah, thy God." Is the difference that there are many more Jews and Christians in this country than there are Muslims?
Posted by: Anonymous at June 27, 2005 12:49 PM
Anonymous, you got it. That's the difference. I wish that more people could imagine what it would be like to live in a country where their religion is very much in the minority and very different from the practices of most citizens. Perhaps its cynical of me but placed under those circumstances I believe they (those on the exteme end of supporting prayer in schools and the like) would be screaming persecution and misuse of their tax money
Posted by: Kim at June 27, 2005 01:31 PM
Anonymous -
I would, as someone who walked the Capitol grounds in Austin on many occasions, have found that monument inoffensive, too, especially if it had been donated by a private interest. I would welcome it if similar monuments to Buddhists, Mormans, Druids, Pagans, and others were donated and placed as well.You are right that many on the right would probably have a fit. But so what? Many on the left would be OK with the Druids and Pagans and offended ONLY by the minority.
Finally, I have some disagreement about the reaction of the religous to the courthouses where they were the minority. I think many would argue that (1) that's likely what they'd find, especially in Islamic countries, and (2) that's fair play. The important point is that in our country even minorities get a fair shake. I think that Judge Moore was off the map. I think that the first 2 displays in Kentucky were over the line. I think that the last one (9 pictures, of which one was the 10 commandments) would probably not make anyone feel particularly unwelcome.
Finally, I really don't think that the Coach would have softened his remarks, nor would the idiot rednecks not beat up their chosen minority, just because there wasn't a prayer before the football game.
Posted by: Ron at June 27, 2005 02:01 PM
To Ron's points - Many of us read the Establishment Clause as confirmation that the U.S. is NOT a Christian, Judeo-Christian nor even Abrahamic-religions' country. That makes it a surprise to find sectarian governmental displays. "Fair play" in that mindset requires the government to abstain, not just give equal time.
If "fair" is enough, why not tithe via the IRS and erect monuments on the mall in D.C. in proportion to the tax revenue contributed by each sect? Is it only because the far-right protestants would worry that the marble Torah or granite statue of the Pope will be bigger than their crucifix?
Posted by: Miner Eighty at June 27, 2005 02:32 PM
Ron, I think you are combining me and Anonymous, but no matter. As you your last point, you are missing the big picture. Prayer before games is one of just a million little ways that people who do not practice the same religion as the majority are made to feel that the rules are written to favor somone else. Removing public sanction of that sentiment has real power over time to at least curb vocal expression of prejudices. But why should people change their behavior when their own government is subtly telling them that their religion is the "offically sanctioned" one every time they walk into a classroom, sporting event, or just to get a marriage license? Did the government "sponsor" lynchings - of course not - murder was just allowed to go on with the state refusing to use its prosecutorial powers to stop it, thereby terrorizing ALL minorities and preventing them from exercising their rights. And in the communties where it happened, it was more than acceptable to the MAJORITY. I don't mean to compare to something that is so extreme, but it is because of the potential for extremities over time that the goverment should be so careful about even minor messages that a certain ethinc group or religion is inferior. It's a lot easier to stop extreme forms of discrimination before construction of the ovens starts. Of course, you are right that most Islamic countries don't even have a public vocabulary to talk about the right to be free from government sponsored religion, but if we think we are better than that, let's show it.
Posted by: kim at June 27, 2005 02:43 PM
I don't know where to put my comment, but here goes nothing...
It's funny to watch this whole thing unfold before our eyes. I have to wonder were there any cases where religious extremists have attempted to remove secular documents or symbolic statues from courthouses or governmental buildings, because of their offending context? I don't think so. To me, it seems that on whole, secularists are very discriminating against religious people and America's Christian heritage which is of course undeniable.
I've often heard so many people saying to Christians, "Well, if you don't like watching violence, nudity, and swearing, just turn off TV! Avert your eyes!" I have to say this, if secularists don't like to see such Christian symbols or religious documents, I would retort that they ought to avert their eyes and be on their way.
I'm not a lawyer or a very distuingished professor with a bunch of Phds to show off, I'm only an average American, and I must say as a born-again Christian, the direction where America is heading right now scares me a great deal.
That's all I have to say on this subject. Oh, I couldn't end this without mentioning a thank-you to people who created Scotusblog, I was googling on the Internet when I found this site. I must say it's an excellent blog and a very well job done!
Posted by: Dan at June 27, 2005 02:46 PM
Dan, television is not government sponsored, and you choose to bring it into your home. All these other forums are government sponsored in some way. The "avert your eyes" rationale has only been accepted by the Supreme Court in situations where the forum is private (i.e. my front yard containing a political sign that offends you) or where the forum is government sponsored but thrown open to all kinds of counter speech (i.e. carrying placards on the sidewalk). In the instance of schools and the court house, people who come there have no choice. They are a "captive audience" - also an important distinction in First Amendment law. As to where the country is headed, what are you afraid of happening? You can practice Christianity all day long and no one will bother you while you are doing it. Why the obsession with bringing religious texts and symbols into government sposored buildings and events? I don't see how that prohibition can be labeled as oppression of your religious practice.
Posted by: kim at June 27, 2005 04:20 PM
Kim,
I could argue that secularists are ones who are obsessed with banning all forms of religious symbols and documents from governmental buildings or forums. There were plenty of secularists in 19th century, obviously they did not remove such religious symbolism or documents from courthouses.
It can also be argued that secularism itself is another form of religion, after all, it cannot prove God does not exist. It rests upon no credible evidence that there is no such Supreme Being in this universe. My point is that it's secularists who are trying to shove secularism down born-again Christians' throats, forcing them to accept secularism at the expense of their beliefs and America's Christian heritage.
Kim, we're also a "captive audience" whether in private or public. There is nothing that escapes our attention, and equally, there is nothing we can avoid the other people's influence, be it religious or secular.
The First Amendment was referring to the institution of a state religion. Now, please tell me yes or no, is Ten Commandments forcing you to adhere to Christian beliefs? Is Ten Commandments display a suggestive mention that the state is already instituting a state religion? I think we both know the answer, which is obviously a big resounding no.
Now, if you are afraid that any display of religious symbolism is in fact encouraging our government to endorse such religion, then why did not America display a stronger Christian attitude? Liberalism would be already in its death throes, it's clear that it's not the case.
Ten Commandments display is...just that a display! It cannot force you to accept Christian beliefs, it cannot hold you at knifepoint, demanding you be converted or else. It cannot do anything else than being on an open display viewed by all people. Finally, if you feel that you're a "captive," then you're welcome to go into another room, after all, such religious displays cannot force you to stay in the same room!
I am afraid of where this country is headed, because once you start banning small things, then inevitably you end up banning much larger things. What if banning Ten Commandments display is the only beginning of banning Christianity altogether from American heritage? Just how much secularists are willing to push born-again Christians to stop practicing what they believe in? Just how much are they determined to strike down all vestiges of Christianity?
I'm sure Christians more than 40 years ago never thought they would see the day when Supreme Court outlawed prayers in public schools! I'm also sure they would never thought they'd see the day when abortions were legalized! Compared to 40 or 50 years ago, there are far more restrictions on Christianity than ever before.
I am willing to bet that in next 50 years, there will be even more restrictions on where, what, and how Christians can practice their beliefs in public and just how far government is permitted to display religious symbolism or documents.
Mark my words, it will happen sooner or later.
Posted by: Dan at June 27, 2005 05:53 PM
Dan, I'm always frustrated when I see comments like yours, because they are simply not true. Prayer in public schools is in no way banned, it is simply unlawful for the school to officially organize the prayer. There is a difference between refraining from expressing a religious message and being hostile to religion. Removing governmental religious displays does not constitute a threat to religion; quite the contrary, it ensures that people are allowed to practice the faith freely, without interference from the government. If yours is the religion being propounded by the government you may not care about this endorsement, but trust that it makes quite the impact when yours is not the viewpoint being endorsed.
Posted by: Matt F at June 28, 2005 02:47 AM
Is there a typo on page 28 of McCreary -- last sentned in first paragraph?
"an interpretive rule to draw the line in all the multifarious situations is not be had."
Is not TO be had? MAY not be had?
Posted by: cfh at June 29, 2005 04:50 PM