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Tuesday, June 28, 2005
What are the Prospects for Future Erections of the Ten Commandments?
Ten Commandments | Posted by Marty Lederman at 05:32 PM
Several of us on this sub-blog have speculated that the "practical" message of yesterday's decisions -- and of Justice Breyer's controlling van Orden concurrence, in particular -- is that although some pre-existing, longstanding displays of the Ten Commandments may be permitted to stand (under a sort of "grandfathering" exception), going forward there will be a strong presumption that new attempts to display the Ten Commandments on state property are unconstitutional, and that the Court will not look kindly on most examples of government speech of a sectarian nature.
On his "Religion Clause" blog, Professor Howard Friedman agrees with this assessment: "While characterizing the motivations of the Fraternal Order of Eagles and Cecil B. DeMille in their distribution of monuments in the 1950's may be difficult, it is not difficult to characterize the motivations of those posting the commandments in Kentucky courthouses. They were attempting to reclaim a Christian America. The scrambling to hide that motivation is something that only lawyers could ignore. The net effect of the rulings will be to prohibit new monuments today motivated by Christian evangelism, while keeping the bulldozers away from scores of courthouse lawns around the country."
This understanding of the precedential impact of yesterday's decisions is strongly confirmed, especially for lower courts dealing with the issue, by the Court's actions today in denying certiorari in two cases that Lyle discusses over on the main blog: one a ruling invalidating a state judge's use of a Ten Commandments poster in his courtroom, and the other a ruling forbidding a city council from convening its meetings with prayers referring to Jesus Christ. It is notable that the Court did not "GVR" these cases (i.e., grant the petitions, vacate the judgments and remand for reconsideration in light of van Orden and McCreary County) -- something that it ordinarily would have done if, in the Court's view, yesterday's decisions might have had any impact on the lower court judgments.
On the other hand, Professor Friedman concludes that "evangelicals are already misreading the opinions. The Washington Post reported that within hours of the decisions, the Christian Defense Coalition announced a campaign to erect monuments similar to the one in Texas in 100 cities across the country as a way to preserve the country's Christian heritage. And the Fort Wayne Journal Gazette reports a rush by Indiana legislators to place the Ten Commandments on Indiana's statehouse lawn." He doesn't think these efforts will meet with much success: "It is the motivation, not the location or form of the depiction, that is key to yesterday's holdings. Only willful blindness could lead to a different conclusion."
Thoughts?
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Comments
My thoughts are that willful blindness is not in short supply in legislatures or City Councils.
Posted by: Ron at June 30, 2005 05:07 PM