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Monday, June 27, 2005
Putting aside the "brooding and pervasive devotion to the secular."
Ten Commandments | Posted by Ann Althouse at 07:07 PM
In Van Orden, Justice Breyer quotes Justice Goldberg:
[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.
“Brooding… devotion to the secular” – that’s a phrase that has always struck me too. What do we really think we are doing with the Separation of Church and State? It should be that we are invigorating our culture, not grimly purifying it, squeezing out the heartfelt expressions of real people, scrubbing away traditions perceived as tainted.
In McCreary,Justice Scalia begins with a story about himself:
On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”
Even as the Establishment Clause is fundamental to our national identity, we have not taken it to have a thuddingly heavy meaning. We have found some air in it, some room for the expression of human beings who, despite their placement in government positions, naturally speak of God. They could learn to watch themselves and avoid such expressions, but we haven’t required it.
Installing a big permanent stone monument is scarcely the same as speaking “God bless America.” It’s the very opposite of spontaneous human expression. But it’s an old stone monument, and most people either don’t notice it, don’t mind it, or get a positive feeling from it. To take it down now is so inexplicably intrusive to ordinary people who’ve gotten used to it or who never noticed it before but would surely notice the removal. I find it easy to align myself with Justice Breyer and say surely tolerating this old monument can be part of what it means to get along in a pluralistic society and therefore part of the real meaning of the Establishment Clause.
I can accept McCreary too. The framed document inside the courthouse, put up recently, is different enough. It's odd to have two different outcomes, and part of me would prefer a crisp rule, if for no other reason than to convey to ordinary people that there really is law here. But continuing the complicated analysis of what Justice Breyer calls the "borderline" cases is not going to destroy us. We can tolerate some complexity if we must.
Maybe it's better that it's not so easy to see what's permitted and what isn't, and those who make the decisions whether to file lawsuits can exercise a little discretion about what is worth fighting for. Clearly, old things carved in stone should be left alone. (A rule that rhymes.) Recent stunts by political panderers: go after that.
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Comments
But why could my forefathers speak their public words in stone but I may not? By whose authority or in what lost war have I lost the rights that they had?
In my tradition, the Decalogue represents Covenant of God with Man. It is not a "recent stunt by political panderers." It is a core symbol of our providentially and morally ordered universe under God.
Unlike Ms. Althouse, I cannot accept this. I think that I will teach my children to regard as illegitimate those who have taken from us the right to proclaim the truth. I think I will teach my children to regard as thieves those who have taken the rights that belonged to my fathers. I am sure that Ms. Althouse is willing to grant us a few old rocks as long as they are kept out of the way. But we will not be kept out of the way.
Posted by: Pensans at June 27, 2005 08:35 PM
"Installing a big permanent stone monument is scarcely the same as speaking 'God bless America.'"
And Justice Scalia would not disagree. That was not the point he was making. Immediately following the text you quoted from his dissent, Justice Scalia explained that America did not choose a secular Constitution as France had done with its language: "France is a secular Republic." Instead America chose a model where religion was not strictly prohibited from the public sphere. Congress was simply prevented from establishing a religion. The difference between a secular Constitution like France's and the American Constitution is an important point, and one that much of the Supreme Court's jurisprudence on this subject has ignored.
Posted by: William Bloomfield at June 28, 2005 05:02 PM