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Monday, June 27, 2005
Initial Reactions
Ten Commandments | Posted by Douglas Laycock at 12:43 PM
Quick initial reactions on McCreary and Van Orden. Disclosure: I filed amicus briefs in each case for the Baptist Joint Committee, the Interfaith Alliance (and in Van Orden, joined by the American Jewish Congress and the American Jewish Committee).
The split decision, the emphasis on purpose in McCreary, and Breyer's emphasis on the specific facts of Van Orden, mean that we will be litigating these cases one at a time for decades. Still, on the whole, a big win for the supporters of these displays. The ones that have been around for a long time, which is a lot of them, now have something of a grandfather clause. Conceal your religious purpose, point to anything else in the area that the state might have endorsed, however unrelated, and the state should be home free.
New displays will be tougher to defend, but the lesson for supporters of such displays is the same: conceal religious purpose, put some secular stuff nearby, obfuscate, and your chances are good. These longer odds of success should deter lawsuits, but Breyer's opinion is a counterincentive: sue early, as soon as the thing goes up, before the grandfather clause begins to run.
I agree with those who say these cases are primarily of symbolic significance. I recently had to explain US church-state law to a French audience, and found myself sheepishly explaining the time and energy we spend on these issues. But to those who feel strongly on either side, the felt sense of insult is great.
Other things to note: contrast what the four dissenters say in McCreary (probably what they really believe) with what the same four say in the Van Orden plurality (trying to take account of the Court's precedents). Interesting that after failing to get the fifth vote, they left the Van Orden opinion the way it was instead of rewriting it on the lines of the McCreary dissent. I think to safe to say that the McCreary dissent is a better prediction of their future votes.
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Comments
I thought Breyer's comments about how the display had been "unchallenged" for 40 years was odd. I know he remarks that there had been no evidence of "intimidation" (what would constitute evidence of it?), but what if you had a homogeneous state/city which had such a display and therefore it wasn't challenged for a substantial amount of time? On the whole I think this was unneccessary for his context specific approach (to the point where he appended maps to his opinion).
I also thought it was interesting that he immediately threw in the distinction that this was not a school.
Posted by: Jim at June 27, 2005 01:17 PM