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Monday, June 27, 2005
Eminently Quotable, But Is It Sound?
Ten Commandments | Posted by Eugene Volokh at 02:39 PM
Justice O'Connor, concurring in McCreary County, writes:
Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society.By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that "[w]e are a religious people" has proved true. Americans attend their places of worship more often than do citizens of other developed nations, and describe religion as playing an especially important role in their lives.
Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?
I'm sure this will be quoted often -- but is it really apt? For much of our nation's history our system has been (by and large) little legal coercion of religious practice, coupled with routine government references to religion, including displays of Ten Commandments memorials; displays of creches; graduation prayers and even daily prayer in school; Presidential preclamations and Congressional acts praising religion; references to God on coinage, in the National Anthem and elsewhere, references that likely contained, at least at the time, some message of endorsement of theism; and more. And this has continued until recently: I suspect that standalone creches were quite common until the 1989 decision striking them down, graduation prayer was quite common until the 1992 decision striking it down, and Ten Commandments displays, even ones that the Court would now consider unconstitutionl, were fairly common until today.
What's more, little legal coercion of religious practice, coupled with routine government references to religion is the system that Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas would adopt. Justice O'Connor's system is much less tried and true.
Now Justice O'Connor might well be right on her bottom line: Perhaps barring Ten Commandments displays, and similar government endorsement of religion, would further strengthen American traditions of religious tolerance, and would increase the religiosity of Americans to boot. (Query why increasing the religiosity of Americans should be any concern of the Court's; perhaps as to that, she meant to ask why supporters of religion should want to trade away a system that has served them so well.)
But it seems to me far from clear that her argument for that bottom line works here. That a routine-endorsement-of-religion system has done good things in the past (compared to systems whose flaws went far beyond endorsement of religion) doesn't mean that a no-routine-endorsement-of-religion system would yield equally good results in the future.
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Comments
Excellent points, EV. While a spectacular drop-quote--I might add that it is not only quotable, but seemingly MEANT to be quoted, as the author of any concurrence or dissent might aspire--it seems to lack concreteness.
First off, my college logic teacher would have thrown a book at me for suggesting "that's the way we've always done it, so we should keep doing it" was anything other than the fallacy of tradition. If anything, one might argue that the (apparent) growth of interest in intermingling the religious with the political/public world is a huge reason why "tradition" might not be such a great answer, after all.
Traditional means might work forever if no other factor is introduced that makes them invalid or outmoded. That is not the case in today's society.
Posted by: gorjus at June 27, 2005 05:42 PM
Ev, do you not read newspapers? The Air Force Academy is now embroiled in a bitter controversey over the religious coercion of its cadets by evangelical faculty. And that is only one instance which we happen to hear about. There are likely any number of government employees or participants in government sponsored programs experiencing the same kind of thing but either afraid to speak out, or realizing that one's battles must be chosen carefully. The right is feeling its oats, and non-believers and non-Christians are afraid to object when their at least tacit acceptance of Christian symbols, values, and doctirine is required. I agree with the post that speculated that the Supreme Court is also afraid of dissing the Christian right entirely, hence the split.
Posted by: kim at June 28, 2005 11:38 AM