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Monday, June 27, 2005
Ten Commandments
Ten Commandments | Posted by Burt Neuborne at 05:30 PM
Sorry I'm late to the party. At my age, doctors are forever poking and prodding, so I've just read the two sets of opinions. My initial reaction is that it isn't worth the time to read the opinions. Years ago, I proposed the "two plastic animals" rule to govern public displays of religious symbols. The rule posits that any religious symbol may be publicly displayed as long as it is flanked by two or more plastic animals of sufficiently bad taste. The Court has now refined the law of faith-based exterior decorating to allow a religious display if it's matured sufficiently (I suppose the Pieta is per se OK), and if it is surrounded by a sufficient number of secular monuments of sufficiently bad taste. Recent displays that respect the dignity of a great religious symbol may be stamped out. This is doctrinal progress? Frankly, I find Justice Breyer's swing vote very hard to understand. I beleive that he takes contextualism to an indefensible place. It can't be that the Establishment Clause in this context simply tracks Justice Breyer's refined sensibilities. I kept thinking as I read the Breyer opinion that what's really bothering Breyer is Flast. In the absence of a genuine community controversy, why should a single hyper-sensitive person trigger judicial review after 40 years. Breyer transmutes that idea to a loss on the merits, as opposed to an Article III issue. I also think it important that the Scalia/Rehnquist/Thomas position only has three votes. Kennedy would not join part I of the plurality. Thus, even with Breyer's insistence on communing with the oracle at Delphi, I see no major shift in doctrine emerging from the cases. Indeed, the stress on purpose that underlies both cases probably makes it harder for the religious right to paper the country with new symbols. Once again, though, I'll ask why do we care? I'm sympathetic to the notion that being forced to look at the government's display of someone else's religious symbol can be disconcerting and can send a message of exclusion. That's why I've signed all of those briefs. But, tell me that Muslims in this country need a display of the 10 Commandments to let them know they are outsiders. Or, that atheists need government displays of religious symbols to tell them they are on the margin of American public life. To my mind, worrying about the symbols confuses cause and effect. As long as we insist on an equality principle - a Koranic verse at the Texas capitol, I don't see the value in offending many millions of Americans for whom the displays provide solace and meaning. That's particularly so when the cases enrage millions of persons who then forget about their economic best interests when they vote. I would hold my fire for the many settings when religious zealots use government to force people to behave a certain way. Move over Justice Breyer. I'm climbing in. Burt Neuborne
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Comments
This comment turned out a bit more dramatic than I meant it to. It's hard to avoid when we're talking about the reasons I love America.
Why do I care so much about religious objects in public places?
You answered it yourself, it's about symbols. If I may go on a bit of a detour, I want to talk about flag burning. Most people, when they think of the flag, think that it represents everything that makes America great. The flag is freedom, courage, hope, and perseverence (plus a lot more).
When others try to burn that flag, that representation of everything they love, most people understandably get upset.
For me, it's always been the opposite. For me, the symbol is not the flag, it's that moment where a man is setting a flag on fire, and the police are there, not to arrest him, but to protect him from the angry mob of citizens. That's a bit melodramatic, I know, but it's what I think of when I try to capture what I love about this country.
Our refusal to put the ten commandments in a courthouse is equally symbolic to me. For me, it's about the fact that we are so careful to keep our government separate from our religious beliefs that we'll root out every speck, even if its tiny, even if likely has no real effect.
On Passover, Jews are supposed to clear out all bread and wheat products from their house, to make sure they don't eat any by accident. Then, they are to take a feather, and move it along the surfaces and corners to make sure they've removed every last crumb.
Does the feather really help much? In a practical sense, not really. And in a practical sense, having to see the ten commandments probably won't have a severe impact on anybody.
But it's not about that. It's about the symbol. When a city government puts up a Christian document and declares it the Truth, I care for the same reason most people care when a protester burns a flag.
Posted by: Cyrus at June 27, 2005 08:41 PM
But, cyrus, a majority of your fellow citizens disagree with you rather strenuously. What gives you the right to force your views on them?
Posted by: y81 at June 27, 2005 11:59 PM
I'll repeat a comment made on Professor Volokh's blog. As it presently stands, the Court's religion jurisprudence seems almost identical to its obscenity jurisprudence in the days before Miller v. California. The standard seems to be, whether the work taken as a whole, as perceived by an ordinary person, (a) has as its primary purpose stimulating an improper (prurient) interest in religion, and (b) is without redeeming secular (social) value. And like the late Justice Potter Stewart, Justice Breyer isn't able to define religion, but he does know it when he sees it -- and was able to tell us that the Texas Ten Commandments monument wasn't it, although he couldn't say why.
And it also seems to me that all the tricks pornographers and their lawyers used to avoid an obscenity rap during that period would be equally effective in avoiding a religion rap. Just like with the old rules for porno, religion scenes need to be intermeshed with secular ones, there must be a pretense of a plot acceptable to secularists, and the majority of the content must be secular. Double-entendres and all the other tricks of someone wishing to escape the censors and their blue-nosing would seem to be the order of the day.
If I were a state attorney general, I might do well to hire an obscenity defense lawyer from the 1960s or 1970s and ask for advice on how things are to be done. Legislators might be advised to emphasize that their sole purpose was art for art's sake -- that they never never never never never had religion in mind, no impure thoughts, honest!
Proving impurity of thought is difficult. The "taken as a whole" approach and emphasis on intent appears to provide a lot of opportunity for those who are so inclined to slip in more than a little bit gratuitous full frontal religion into our public art, without risking the censors and bluenoses from the ACLU knocking on our door.
Posted by: ReaderX at June 28, 2005 12:25 AM
I think we can extrapolate from today's cases to derive a helpful template for courts deciding future Establishment Clause cases:
LIME, petitioner,
- v -
UNITED STATES, respondent.ON WRIT OF CERTIORARI TO THE COURT BELOW.
MR. JUSTICE O'KENNEDY delivered the opinion of the Court:
The Establishment Clause is very important. And while this Court has an ever-changing wardrobe of Establishment Clause tests, this case does not require us to choose one definitively. Although this is a close case, due to the nature and context of the governmental act at issue here, we think that it {is / is not} (circle one) a violation of the First Amendment.
Accordingly, the judgment of the court below must be and hereby is {affirmed / reversed} (circle one).It is so ordered.
Posted by: Andrew Edenklein at June 28, 2005 01:56 AM
y81,
A majority of citizens do not disagree with Cyrus. A bare majority want THEIR religion to be promoted and placed in a position of prominance. When you ask people whether it would be appropriate to display verses of the Koran or the Torah you get different responses.
The symbolism is the importance here. No surprise to that in the least. I will avoid heading int othe maudlin, stump speech sounding part of the argument here. Suffice it to say that when you remove Protestant Christian from the religion being promoted by the government, the views on this change.Posted by: Joel at June 28, 2005 10:01 AM
For most americans, yes, religious symbols on the courthouse wall aren't going to do anything more than annoy them. Especially since 99.9% of those symbols will be Christian in nature and something like 80% of americans identify as Christian.
Consider, however, a class of americans who's very existence is considered a "sin" by majority christian morality. When a gay man or lesbian walks up to a courthouse to seek justice, and they see that this particular courthouse is presided over by devout christians, it's more than annoying, it's frightening. To me it reads "no justice here for you." Think "white judge and all white jury preciding over a black defendant in 1960."
When the symbols of a group that currently seek to oppress you are hung from the courthouse it does nothing less than erode confidence in the justice system itself.
Posted by: Shawn Hicks at June 28, 2005 10:47 AM
Yikes Joel,
I didn't know that the 10 commandments were a christian thing -- maybe I'm ignorant, but isnt the decalogue from Jewish scripture?
Oh and by the way, Muslims regard Moses as a prophet too.The argument that these displays are pro-evangelical christian is ludicrous, that would rather entail a quote from billy graham etc.
Posted by: Will at June 29, 2005 10:56 AM
Yes, Will, the Ten Commandments and Moses do go to the underlying belief structure of all three Abrahamic religions. When we are using a King James Bible version of the commandments here, there is an assumption about what version is the "proper" version. Mayhaps you are ignoring the point I was making by putting up a straw man of the decalogue. This assertion is far from ludicrous when you observe who is doing what ... and for the record I did not reference evangelism only Protestantism.
Replace the government's use of protestant christian imagery and standards in these situations and you get a different result from the majority of people. Again, people are not supporting the government endorsing religion, they are encouraging the government to endorse their religion which is a very different thing. If the pledge of allegiance were to be changed to replace "Allah" for "God" what would happen?
Posted by: Joel at June 29, 2005 03:29 PM