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Monday, June 27, 2005
Proof of secular purpose and adverse possession of the public square
Ten Commandments | Posted by Ira Lupu at 12:34 PM
These two decisions highlight two grand themes. In McCreary County, the theme of course is the relevance of governmental purpose to constitutional outcomes. One very important question that may now appear in future litigation about the Decalogue or other religious symbols is the placement of the burden of proof re: secular purpose. Would any government display of a religious text, like the Ten Commandments, raise an inference of impermissible religious purpose under McCreary, thereby shifting the burden to the government to provide objective evidence of a secular, validating purpose? Or does the burden remain on plaintiffs to show objective evidence of impermissible purpose beyond the symbol itself? (McCreary involved plenty of such evidence, so the burden was readily satisfied.) For older displays, the placement of the burden may well prove dispositive.
The second question is the more substantive one of the extent to which government may speak in a religious voice not shared by all citizens. Here, of course, Justice Breyer represents the slightly surprising swing vote. (A background paper posted by the Pew Forum on Religion and Public Public Life back in March identified O'Connor and Breyer as the "contextualists" to watch in these cases.) Breyer emphasizes his view of the purposes of the Establishment Clause, which include (for him) avoiding political divisiveness along religious lines, a theme he emphasized in his Zelman dissent. So he focuses on, among other things, the age of the display, and the absence of challenge for 40 years. With Breyer's opinion now representing the controlling position, contemporary attempts to create new displays of the Ten Commandments and other religious sentiments will be considerably more difficult to sustain than older, pre-existing ones. The heaviest impact of that emphasis on the age of the display is likely to fall in the short run on evangelical Christians, who are the prime movers in most such contemporary efforts. The others who will be affected by that emphasis are religious movements newly come to political power in America; they will be less able to have government adopt or acknowledge their messages. And the beneficiaries of Breyer's view are long-in-the-mainstream religious groups (i.e., the sorts of Christians and Jews who cooperated when the Texas monument and others like it went up.)
I am bothered by this sort of adverse possession of the public square by religious sentiments; if you get your message up and keep it there for a generation or two without challenge you win, but if you try to get a new message into that square, and there's contemporary litigation, you may lose. This is not "originalism"; it's some sort of Breyerian pragmatism, and it cannot be squared with any theory of equal religious liberty in America.
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