Way to Resolve a Controversial Issue, Supremes

It was probably asking too much of the current Supreme Court for them to produce two well-reasoned interlocking opinions that would clarify the relationship between the state and expressions of religion. Instead, the Court's two 10 Commandments decisions, one from Texas and the other from Kentucky, hardly settle the issue. In two 5-4 decisions (with shifting majorities, Booker-style), the court held that displays of the Commandments in two Kentucky county courthouses violated the Establishment Clause, while the Commandments monument on the grounds of the Texas state capital is OK.

Having scanned the opinions, a few things. First, the Kentucky counties really stepped in it from the beginning in terms of their display. First, it was the Commandments alone. Second, it was the Commandments surrounded by some other documents, all of which emphasized Christianity. And third, a revised display that was, in effect, even worse. As Justice Souter wrote for the Court (pp. 24-25:

Nor did the selection of posted material suggest a clear theme that might prevail over evidence of the continuing religious object. In a collection of documents said to be “foundational” to American government, it is at least odd to include a patriotic anthem, but to omit the Fourteenth Amendment, the most significant structural provision adopted since the original Framing. And it is no less baffling to leave out the original Constitution of 1787 while quoting the 1215 Magna Carta even to the point of its declaration that “fish-weirs shall be removed from the Thames.” App. to Pet. for Cert. 205a, ¶33. If an observer found these choices and omissions perplexing in isolation, he would be puzzled for a different reason when he read the Declaration of Independence seeking confirmation for the Counties’ posted explanation that the “Ten Com­mandments’ . . . influence is clearly seen in the Declara­tion,” id., at 180a; in fact the observer would find that the Commandments are sanctioned as divine imperatives, while the Declaration of Independence holds that the authority of government to enforce the law derives “from the consent of the governed,” id., at 190a. If the observer had not thrown up his hands, he would probably suspect that the Counties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.

Of course, that all implies that had the county officials been more clever in designing and implementing their displays, it would have been OK. As for the Texas case, Chief Justice Rehnquist's opinion doesn't exactly show a lot of heavy lifting in concluding that the monument, one of 17 in 22-acre area, was part of a broader cultural/historcial display.

As for Scalia's dissent in the Kentucky case, which Jack Balkin smashes to bits over at Balkinization, I will give it one thing: Scalia is right that a principled application of the majority's test would remove a lot more religious stuff from public life. He also quite correctly assumes that most justices (both now, before, and after) lack the stones to follow that principle to its results. But as for Scalia's own arguments - why is it that Mr. "Originalist" has to resort to such blatantly political bullshit as Thanksgiving Day Proclamations to come up with the meaning of the plain language of the Constitution? As Balkin concludes, it shows that Scalia is willing to cast aside his judicial philosophy to reach the result he wants.

For lots more commentary on these cases, in much more depth and with greater intellect than I can provide, head over to the discussion that SCOTUSblog is hosting.