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Wednesday, June 29, 2005
Curing an invalid purpose
Ten Commandments | Posted by Rick Garnett at 12:23 PM
In the McCreary case, the display at issue had been revised after, and in response to, earlier rulings by courts that the Counties' two previous displays lacked a "secular purpose." And, one of the issues in play was the extent to which the history of the litigation regarding these displays, and the content of the two earlier displays, was relevant to the question whether the third display had the required "secular purpose."
Judge Ryan, dissenting from the Sixth Circuit's ruling below, had "denied that the prior displays should have any bearing on the constitutionality of the current one: a 'history of unconstitutional displays can[not] be used as a sword to strike down an otherwise constitutional display." Justice Souter, however, insisted that "the world is not made brand new every morning. . . . [R]easonable observers have reasonable memories, and our precedents sensibly forbid an observer 'to turn a blind eye to the context in which [the] policy arose.'" He added, in a footnote, "[j]ust as Holmes's dog could tell the difference between being kicked and being stumbled over, it will matter to objective observers whether posting the Commandments follows on the heels of displays motivated by sectarianism, or whether it lacks a history demonstrating that purpose."
Now, Justice Souter emphasized that "we do not decide that the Counties' past actions forever taint any effort on their part to deal with the subject matter." Still, "an implauslbe claim that governmental purpose has changed should not carry the day in a court of law any more than in a head of common sense." Building on Marty's post asking about the prospects for future installations of Ten Commandments displays, I wonder what we can expect in terms of the development of a curing-nonsecular-purposes jurisprudence? More specifically, in practice, will -- in Justice Scalia's words -- a continuing "desire to display the Ten Commandments", in the face of court rulings that earlier displays are insufficiently neutral or fail to stay on the "acknowledgment" (rather than "endorsement") side of the line, preclude a conclusion that a later display has the required "secular purpose"?
When I was in practice, I worked for a while on the Kiryas Joel litigation. To (over)simplify, after the United States Supreme Court invalidated -- on Establishment Clause grounds -- the Kiryas Joel school district, the Legislature of New York tried again. Then, the new district was also invalidated by the New York Court of Appeals (although that court conceded that the "Legislature was perfectly within its authority in attempting to cure the constitutional infirmity of a prior law"). So, the Legislature tried a third time. And, in an opinion invaliding this third effort, the State's intermediate appeals court complained that "this case results from the third attempt of the Legislature of this state to ignore the rulings from Courts . . . and to impermissibly endorse the Satmar community of Kiryas Joel." (The New York Court of Appeals affirmed, 4-3).
Here's the question I'm getting at: When will / should government responses to judicial determinations that previous government actions violated the Establishment Clause be framed as "attempt[s] . . . to ignore" such determinations?
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Comments
At least it seems to require greater effort than that required to purge the taint of an unconstitutional seizure or confession, although that standard has certainly weakened over time.
Posted by: Roger Friedman at June 29, 2005 04:05 PM
I thought Souter's analysis, about the world not being made new each morning, was spot on and spot on for the purpose that Souter employed the metaphor. In analyzing the first Lemon prong, which is to say the purpose of the display, the government's intent in erecting the display may be proved by circumstantial evidence. There oughtn't be any statute of limitations on when that circumstantial evidence ceases to be probative. Either the circumstances that led to the erection of a display are evidence of an intent to promote religion, or they are not. That the circumstances happened months or years ago doesn't change that much.
On the other hand, analysis of the effect prong in Lemon is greatly aided by consideration of how much time has passed between when a display was installed and when the matter comes up for consideration in court. Consider, for example, the Texas monument case. If the evidence had been, and it decidedly was not, that members of the Texas Legislature led government-sponsored, Baptist, prayer at the monument, and encouraged people to turn away from their other false gods, the effect of the monument may well have been to entangle religion and government, the non-sectarian purpose of the monument's designers notwithstanding.
I also thought that Souter's admonition, that the Courts would not suspend disbelief, was an important blow for judicial independence. In the Tennessee case, any fact finder would easily, and correctly, conclude that that Ten Commandments display was intended, as the planners directly said, to endorse a particular brand of Christianity. Judges ought not be bound to ignore as judges what they plainly know to be true as men and women. The Tennessee officials, in the middle of litigation, undertook to try and disguise their real intentions.
There's a school of thought that that kind of duplicity, under oath, is a perjury, and it is certainly inconsistent with a tribunal's mission to divine the truth as best it can. Souter told state officials in McCreary, "Don't play games with us with the facts. Either you have behaved Constitutionally or you have not, but don't gimmick the system with half truths about what you are really trying to do." Good for Souter.
Posted by: Cullen Seltzer at June 29, 2005 05:12 PM