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Monday, June 27, 2005
Divisiveness
Ten Commandments | Posted by Eugene Volokh at 01:27 PM
The opinions joined 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.
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.
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Comments
An interesting argument, but one that underplays, I think, the amount of divisiveness associated with traditional religious displays. Divisiveness isn't always (or maybe even best) measured by lawsuits.
A couple questions occur:
How would we go about measuring such divisiveness anyway?
Is all divisiveness of a sort? (Query whether complaints from evangelical Christians at the Air Force Academy feeling persecuted in light of the investigation into the religious culture there amount to the same thing as complaints from other cadets about the proselytizing atmosphere.)
Posted by: Simon at June 27, 2005 01:46 PM
Very well put, and absolutely right on! The new rulings are going to create even more resentment.
Posted by: Bob Agard at June 27, 2005 02:28 PM
Professor Volokh's argument, if I correctly understand it, is that Supreme Court opinions constitute state-action. Thus, much as a state court enforcing a racially-restrictive covenant is a VOID act, a SCOTUS holding could be VOID (of course, for institutional reasons, only a future SCOTUS could overrule the holding).
If this argument is sound, then what would prevent a mane's rights litigant from arguing that the balancing test in Doe v. Bolton (always in favor of the woman) is a denial of Equal Protection? Or that child support laws violate Equal Protection so long as women have a unilateral right to abortion, because a hypothetical woman's female sex partners are not targeted for income redistribution, but her male sex partners are, simply because of the natural and probable consequences of their biological capacities, i.e., inability to generate sperm and fertilize a woman during intercourse. This undue burden, one could argue, on heterosexual male intimate association is not imposed on lesbians, female bisexuals, or homosexual men. Thus the balancing test in abortion rights cases and child support policies (always favoring the mother) single out male heterosexuals for their ability to produce sperm and the kind of sexual activity in which they choose to engage.
I do not mean to be controversial, but this seems the logical conclusion of Professor Volokh's argument in a post-Lawrence legal landscape.
Posted by: James Kolbert at June 27, 2005 02:43 PM
Volokh seems to forget (and how could he?) that a major purpose of the Bill of Rights is to protect minority views, not to smooth out public discourse. Of course a court decision striking down a 10C posting (or a creche display) annoys more people that it satisfies. The "resentment" to which Volokh refers is the resentment of a majority having its expressive or behavioral prerogatives curtailed by the fact that not everything in a society built on rights hews to the whims of a majority.
Posted by: bb at June 27, 2005 02:43 PM
bb hits the difficulty in Prof. V.'s views succinctly. The protection of minority views is mroe important than the protection of majority views. Why? Because all majority views are likely to be minority views at some point. Simply because a majority prefers a result does not make such a result legal. Cast your minds back in time to SCOTUS looking at "seperate but equal" and getting rid of it. Should the divisiveness such decisions caused have prevented integration or the striking of the Jim Crowe laws?
In theory, the court is independent of political demogaugery. If, in interpreting the First Amendment, we get a result that speaks to rpeventing divisiveness, do we apply this to the present snapshot alone at the expensse of future generations? Courts are often the body called upon to make the unpopular decisions. Executive officials and Legislative branches don't want to be accountable to the 52% of the population that supports an unconstitutional measure.
Posted by: Joel at June 27, 2005 03:30 PM
Perhaps Breyer is concerned about the divisiveness of the action of the governmental entity at the time the display was made. There is an argument that any entity approving a new display of the Ten Commandments at the present time (when such display is clearly controversial) is generally making an intentionally divisive statement. It is not at all clear that allowing the Eagles to erect the display during the 1950's had such a divisive purpose. There is a difference between a quick response to an intentionally divisive action and a second guessing of actions that were not controversial when enacted.
Posted by: DC at June 27, 2005 04:07 PM
Volokh misses the reality.
The way it works is this:
No religious strife.
Religious group gets Commandments displayed.
Court strikes down Commandments.
Religious group gets upset.
Religious strife.Volokh overlooks the second part. That is the only way he can claim that the Court causes the strife. In reality, when one considers the role of the religious group in getting the Commandments displayed, it is really the religious group causing the strife.
That is the interesting point behind Breyer's concurrence. Given enough time and a lack of strife related to the display, then it would be the challengers to the display who are causing the religious strife.
Even then, the Court is just the last arbiter: it is not the cause of the strife.
Posted by: Cody at June 28, 2005 12:45 AM