June 28, 2005
McCreary v. ACLU, Van Orden v. Perry
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Okay, it's a bit later, and more detailed reports are out. However, a few things still seem unclear, and I'm trying to sort through them. What seems apparent is that the initial reports (should have known better than to take CNN's word) were incomplete, and apparently only reported on the Kentucky rulings, and not the Texas ruling (or were simply wrong).
First off, the court was very clearly split on the issue, with the swing votes of Breyer and O'Connor making the law here. The case where two Kentucky courtrooms had framed copies of the Ten Commandments hanging in the courtrooms were ruled clearly unconstitutional, because they "went too far" in promoting religion. How that is, is still unclear from news reports at this time.
On the other hand, a 6-foot granite monument of the Ten Commandments on the grounds of the Texas capitol was ruled constitutional, on the premise that it was a historical display and not a religious statement (this is what the press is conveying; I find differently below from reading the actual decisions). Again, the news reports were, at best, nebulous as to how this was determined. The reports referred to the frieze in the Supreme Court which represented Christian as well as other religious legal icons. However, to my knowledge, the Texas monument did not refer to other religions, nor was there any sign that the other monuments nearby represented other faiths--however, there was a hint that since nearby monuments were historical, albeit not religious, that somehow watered down the Ten Commandments display enough to make it acceptable.
One thing that is clear: the court ruled that these displays must be ruled on on a case-by-case basis. In other words, the infamous "I know it when I see it" standard.
This from the news reports, which I read first. The actual decisions, which I read afterward, are of course much more detailed. One thing that stands out, as I mentioned above, is that O'Connor and Breyer were the real movers and shakers in today's decisions.
First, the Kentucky courtroom cases [PDF file]. The majority decision clearly states that the intent of making the displays must be secular, but that knowing intent is very difficult. However, it is also noted that this nebulous gray area is not to be taken advantage of, and that claims of secularity which are obviously a "sham" cannot be accepted. Furthermore, the attempt to legitimize the TC displays by surrounding them with other historical documents did not work, at least in part because the other documents highlighted religious statements within historical decisions--in effect, they attempted to bolster the idea that the U.S. is a Christian nation. The written statement that the display was "in remembrance and honor of Jesus Christ, the Prince of Ethics" and other statements of obvious religious endorsement, including an endorsement of former Judge Roy Moore--these probably helped clarify that these displays were more than just a little clearly intended as religious endorsement. (Not to mention the fact that Jesus and the Ten Commandments come from slightly disparate areas of the Bible.)
In the dissent, Scalia rather unprofessionally invoked the country's reaction in the wake of 9/11, when the president said "God Bless America" and someone from Europe wished his leader could invoke God as well. In other words, simply because political leaders invoke religion in a display that stands simply because it has not been challenged, that proves religion belongs in government. Oy. Scalia goes on to quote religious incursions into public matters which were not challenged and therefore persisted, using them as bludgeons to say that it was OK to do this sort of stuff. In other words, this is based less on the Constitution, legal precedent or court decisions than it is on what religious fundamentalists have gotten away with in the course of this nation's history. Swell. Glad it was the dissenting opinion.
And you can't say I didn't see this coming; four months ago, I clearly stated that "these religious incursions, each one violating the principle of church and state, are used to justify the next step, the new religious incursion." And that's exactly what Scalia was trying to say in his dissent. Did I call it, or did I call it?
On this decision, the split was: SOUTER, STEVENS, O’CONNOR, GINSBURG, and BREYER in the majority; SCALIA, REHNQUIST, THOMAS and KENNEDY dissenting.
The second [PDF file], and less fortunate decision was about the Texas case. Breyer was the swing vote on this one.
The primary decision in the finding supported by the wingnut quartet was based upon the idea that the monument was provided by an organization and that "the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency." Furthermore, that a "reasonable observer, mindful of history, purpose, and context, would not conclude that this passive monument conveyed the message that the State endorsed religion."
Rehnquist unashamedly slipped in a quote which said, in part, that
"the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself."Now, I haven't studied the Mayflower Compact, but I can say with a certain amount of confidence is that it is not a legal document which is currently binding. What I do know is that the Constitution does not in any way, shape or form express the devotion to the belief that there is a God and that our rights are rooted in that. The quote borrows language from the Declaration of Independence, not a legal document, and applies it to the Constitution, which not only does not support religion, but in fact negates its place in government, and that where religion is mentioned in the body of the Constitution it is only to point out that religion cannot be injected into governmental proceedings, to wit: Article VI, Clause 3, stating that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." A Constitutional provision which is blatantly violated, as any politician who chooses not to add the unofficial "So help me God" is pilloried in our "secular" government. And yet Rehnquist uses this very violation to uphold his decision, using it as a jumping board upon which he bases his decision. What a sham.
But Breyer was the swing vote that decided this in truth, and since his opinion was separate, it's going to be the gold standard for the future. Fortunately, it has been noted in the press that "Breyer didn't join the court's lead opinion, written by Chief Justice Rehnquist. That means Breyer's reasoning will set the controlling standard in future cases." I hope that news reporter's observation is true, because Rehnquist's writing was a piece of biased crap wandering far from the truth of the Establishment clause, whereas Breyer's decision is somewhat more reasonable.
Breyer's argument is not based on the bullshit idea that since one can trot out a one-sided, purposefully biased list of religious incursions, many of them indirect at best, into government territory, while carefully ignoring the Constitution and the Bill of Rights, that this equals a legal basis for allowing further incursions violating the First Amendment. Breyer, instead, bases his decision closer to O'Connor's in the Kentucky case, wherein Breyer states that it's not always so easy to see what the intent was, and therefore we can't be certain that it's an attempt to proselytize. In effect, we're giving these people the benefit of the doubt, but maintaining securely that the Establishment clause truly forbids an endorsement of a religion.
He also backs up O'Connor in the context of the legal test of secularity vs. religious intent:
Neither can this Court’s other tests readily explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings... ; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving. ...This is the "I know it when I see it" ruling I mentioned above.
If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment. ... That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying judgment purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court’s prior tests provide useful guideposts—and might well lead to the same result the Court reaches today ... --no exact formula can dictate a resolution to such fact-intensive cases.
However, Breyer does allow a less-than-satisfying loophole that fundamentalists may swarm through in the future, saying that since the Texas monument imbues "proper standards of social conduct ... [and] a historical message (about a historic relation between those standards and the law)," the monument contains a secular message in addition to the religious one. That's cutting it pretty thin for my tastes, and I have the feeling that the fundies are looking at those words and drooling at the prospect of shamming their way right through those words into erecting countless more religious monuments on public land. "Oooo! Social conduct and history! We can fake that easy!"
Another disturbing element is Breyer's wording that since the Texas monument is not in a location which "suggests little or nothing of the sacred." I find that unsettling because again it could be used as a loophole: put a religious endorsement in a place where there's nothing else religious around, and you're golden.
Breyer ends with:
That kind of practice is what we have here. I recognize the danger of the slippery slope. Still, where the Establishment Clause is at issue, we must “distinguish between real threat and mere shadow.” ... Here, we have only the shadow.
In light of these considerations, I cannot agree with today’s plurality’s analysis. ... Nor can I agree with JUSTICE SCALIA’s dissent in McCreary County.... I do agree with JUSTICE O’CONNOR’s statement of principles in McCreary County..., though I disagree with her evaluation of the evidence as it bears on the application of those principles to this case.
REHNQUIST, SCALIA, KENNEDY, THOMAS, and BREYER were in the majority; STEVENS, GINSBURG, O’CONNOR and SOUTER dissented.
So, what are we left with?
As some have pointed out, a somewhat conflicted message. But the good news is that the Establishment clause has been firmly upheld, and though Breyer has introduced a few loopholes that you can be certain the fundies will try to take advantage of, the basic principle that a display must be secular and not an endorsement of religion stands pretty strongly in place.
More good news than bad, but it could have been a lot worse.