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Monday, June 27, 2005
Justice Breyer's Naïveté
Ten Commandments | Posted by Eric Muller at 02:24 PM
(Cross-posted from IsThatLegal?.
I was not going to write anything about today's Ten Commandments decisions, but the foolishness and naïveté of Justice Breyer's outcome-determinative concurrence in the Texas case calls out to be named.
Several factors lead Breyer to see the Ten Commandments tablets on the grounds of the Texas State Capitol as secular, but the one he calls "determinative" is that nobody has publicly complained about it before.
As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to engage in any religious practice, to compel any religious practice, or to work deterrence of any religious belief. . . . Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets message as part of what is a broader moral and historical message reflective of a cultural heritage.
What could Justice Breyer mean when he says that "40 years passed in which the presence of this monument, legally speaking, went unchallenged?" Breyer is trying to gauge whether people visiting the Capitol see the monument as religious, and to do that, he asks whether people have repeatedly filed lawsuits?
That is supposed to be a measure of what the average visitor sees in the monument?
Why does Breyer limit himself to asking whether the monument has "gone unchallenged" "legally speaking?" Do people's views register only if people have the courage and the resources to sue? Here's the truth: Justice Breyer hasn't the faintest idea how "the public" actually sees this monument. He's just making this up.
Justice Breyer leaves open the possibility that decades of "legally unchallenged" display of a religious message might run afoul of the Establishment Clause if the absence of "legal challenge" were due to a "climate of intimidation."
How, exactly, is a person to show such a "climate of intimidation?" Perhaps there is no such climate in Austin, Texas, but monuments like this grace the parks of little towns across the country -- towns like Cody, Wyoming, where there is nary a mosque nor a Buddhist church nor a Hindu temple to be found.
The social pressures toward conformity and against public complaint (not to mention litigation) can be overpowering in America's small towns. Take it from someone who lived for four years in Laramie, Wyoming (which, by the way, is a melting pot compared to Cody). I could never "prove" a climate of "intimidation" on religious matters in Laramie. But that doesn't mean it's not there.
Justice Breyer has obviously never lived in a small town. He's mistaking his own view of this monument for "the public's." And he's missing the Establishment Clause dangers that lie in towns so homogeneous--and there are many of them--that "the public" could never be expected to produce a soul brave enough to complain.
[Marty Lederman adds: Eric, I think you'll like Justice Souter's response to this argument:
"[T]he State’s argument . . . seems to be that 40 years without a challenge shows that as afactual matter the religious expression is too tepid to provoke a serious reaction and constitute a violation. Perhaps, but the writer of Exodus chapter 20 was notlukewarm, and other explanations may do better in accounting for the late resort to the courts. Suing a State over religion puts nothing in a plaintiff’s pocket and can take a great deal out, and even with volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully deterrent. I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause."
Having said that, I should note that I don't think Justice Breyer was being naive -- instead, he was being tactical. I'll try to say more on this in response to Eugene's post.]
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Comments
Eric, I think you'll like Justice Souter's response to this argument:
"[T]he State’s argument . . . seems to be that 40 years without a challenge shows that as afactual matter the religious expression is too tepid to provoke a serious reaction and constitute a violation. Perhaps, but the writer of Exodus chapter 20 was notlukewarm, and other explanations may do better in accounting for the late resort to the courts. Suing a State over religion puts nothing in a plaintiff’s pocket and can take a great deal out, and even with volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully deterrent. I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause."
Having said that, I should note that I don't think Justice Breyer was being naive -- instead, he was being tactical. I'll try to say more on this in response to Eugene's post.
Posted by: Marty Lederman at June 27, 2005 02:43 PM
It seems to be an example of a justice using the cover of public opinion for his own purposes. Justices know that as long as they don't offend a large majority they're free to express their own views as requirements of the Constitution. That is, it's another example of poor constitutional reasoning.
Posted by: Kevin at June 27, 2005 02:49 PM
"Take it from someone who lived for four years in Laramie, Wyoming.... I could never 'prove' a climate of 'intimidation' on religious matters in Laramie. But that doesn't mean it's not there."
Nor does it mean that it is there. I, too, spent years at UW. I never noticed any "climate of intimidation".
That said, I agree with your larger point that a delay in requesting relief should not necessarily be considered evidence of the level of relief needed or deserved. We certainly tolerate much less official religiosity now than we did even 50 years ago; norms change.
As to whether the law should change in practice without a change in text, well, that's a harder question. Did the previous practice comport well with the text of the law? Opinions clearly vary.
Posted by: Doug Sundseth at June 27, 2005 03:02 PM
Doug, did you spend your years there as a Jew? I did, and that might matter a little.
I think that "intimidation" was probably too strong a word -- for Laramie, because it's a university town. Certainly, though, in my view, there is lots of religious *pressure* in Laramie.
Posted by: Eric Muller at June 27, 2005 03:19 PM
Well, Justice Breyer did go to Stanford in the late 50's and early 60's . . . does Palo Alto qualify as a small town??
There is another practical component to the "culture of intimidation" that has been spoken of. Let's say we do have a brave soul--in Laramie, or in my city of Jackson, Mississippi--who does want to speak out against the grain of the prevailing culture. That desire must STILL be effectuated by an attorney or some other form of legal representation.
In a small town (or, let's admit: a small market) many attorneys might not desire to draw the wrath of a great number of those who are fine with the religious display. I'm not saying it's right, I'm not saying it's a good thing, but it just goes to further the intimidation--and might show that Justice Breyer's "test" is better as boilerplate.
Posted by: gorjus at June 27, 2005 05:51 PM
No, I'm a scientist by inclination (Physics major at UW, 1981-85). I don't find religion necessary to explain anything.
I should perhaps note that while I'm not the most sensitive person in the US to religious displays, I'm just about the most sensitive person I know. I'm not sure that much other than football, basketball, sex, and alcohol was ever in the forefront of the minds of most of the people in Laramie when I was there.
Now, I was raised a Lutheran (sort of), so I suspect that the constellation of things I would notice is different than the one you would, but I still found the city notable more for its blandness than anything else.
Posted by: Doug Sundseth at June 27, 2005 06:30 PM
The idea that a constitutional violation is ok if it has a long enough pedigree, is one that Scalia and the Chief Justice have argued before, e.g. in dissent in McIntyre v Ohio. This is the first time I've seen Breyer use it.
I guess what Scalia is saying is that the constitution is malleable, and has a meaning that changes over time, based on what you can get away with.
I was talking to an Esbeck alumna today who mentioned that the 10 commandments are foreign law, and we all know how much conservatives like Scalia like foreign law.Posted by: arbitrary aardvark at June 28, 2005 12:47 AM
Ha! Good point, Aardvark. However, Justice Scalia has no problems quoting Blackstone . . .
Posted by: gorjus at June 28, 2005 04:14 PM