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Monday, June 27, 2005
Surprises in the Ten Commandments Cases
Ten Commandments | Posted by Rick Garnett at 12:54 PM
First, thanks very much to SCOTUS Blog for hosting this discussion, and for inviting me to participate. I am sure I am not alone in thinking that the Kelo-related conversation hosted by this Blog in recent days was incredibly informative and engaging.
I wonder if others were surprised that the vote in Van Orden (the Texas case) was only 5-4? After oral argument, I thought that Justice Breyer would probably vote in favor of the Texas monument; I did not expect, though, that Justice O'Connor would vote, as she did in McCreary, against the display.
I am particularly intrigued by Justice Breyer's statement -- his concession, perhaps? -- that he "see[s] no test-related substitute for the exercise of legal judgment" and that "no exact formula can dictate a resolution to . . . fact-intensive cases." As I understand his opinion, then, he does not even profess to rely on the already "fact-intensive" endorsement test, but instead invokes, at an even more general level, "the underlying purposes of the Clause." And, one of the "basic purposes" of the Religion Clause, he writes, is to "avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike."
In several recent opinions -- e.g., his Zelman dissent, his opinion in Newdow -- Justice Breyer has treated as constitutionally significant his predictions or observations regarding what Chief Justice Burger once called "political divisiveness along religious lines." So, is "divisiveness" the new "endorsement"?
I should note that I have an article in draft that examines, in some detail, the history and content of this "political divisiveness" argument. I'm sure we'll all have more to say about this as the conversation proceeds, but here's a quick thought (taken from an essay I wrote a few weeks ago for Commonweal magazine):
It is worth remembering . . . with John Courtney Murray, that “pluralism [is] the native condition of American society” and that the unity toward which Americans have aspired – e pluribus unum – is the “unity of a limited order.” Those who crafted our Constitution believed that both authentic freedom and effective government could both be secured through checks and balances, rather than standardization; and by harnessing, rather than homogenizing, the messiness of democracy. Accordingly – this side of heaven, anyway – we should, in Murray’s words, “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity.”
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