Dear Walter, Tim, and Charles:
I want to begin with the Ten Commandments cases. As I’ve said before, these opinions are largely exercises in futility, and all the big press they’ll receive in the coming hours will be misleading. The public displays of religious symbols cases signify next to nothing, besides revealing that the court will never agree to a workable Establishment Clause test until someone retires. But Wisconsin law professor Ann Althouse, in a recent blog on the subject (pre-decision), put it far better than I could:
These are inconsequential displays, which is why they’ll be approved if they are approved and why it won’t make much difference if they are taken down either. … Still, they are too much for the extreme secularists and just the beginning of what extremists on the other side would like to see. The Court needs to draw a good line that fends off both extremes.
No matter what your newspaper tells you in the morning, today’s two opinions in McCreary v. ACLU and Van Orden v. Perryaren’t groundbreaking, earth-shattering, or even all that newsworthy. What’s slightly newsworthy is that Justice Stephen Breyer, and not Sandra Day O’Connor, is the swinger this time. But any explanation for how he could sign off on both majority opinions is missing today, unless you take at face value his odd new principle that old monuments are better than new ones.
In McCreary, the Kentucky case, the court, by a 5-4 margin, upheld a lower court ruling finding that framed copies of the commandments posted in county courthouses violated the federal Constitution’s ban on government “establishment” of religion. In Van Orden, a different 5-4 lineup found that a much larger, more obtrusive stone monument to the commandments, sitting on the state capital grounds in Austin, was constitutionally permissible (thus enshrining once and for all the venerable constitutional rule: “Size doesn’t matter”).
The key difference between the Kentucky and Texas displays comes down to what the justices think—and specifically, what Justice Breyer thinks—the state’s purpose was in erecting these monuments. In other words, Establishment Clause jurisprudence remains a matter of divining the unknowable secrets lurking in the hearts of sometimes long-dead government officials.
Justice David Souter, who authored the majority opinion in McCreary, found that the original purpose of the Kentucky county officials was impermissible, given that they openly admitted to framing the Decalogue in part “in remembrance and honor of Jesus Christ, the Prince of Ethics” and in solidarity with Alabama’s crusading Judge Roy Moore. This purpose even canceled out later statements of purpose that were religiously neutral. So, counties’ subsequent efforts to cure the overtly religious purpose of the display (by tacking secular “foundational” documents such as the Magna Carta and the Mayflower Compact onto the display) do not erase the original, overtly religious purpose.
What’s so important about Souter’s opinion, I think, along with O’Connor’s concurrence, is that the majority is not only shockingly willing to brush the dirt off the wilting horror that is the 1971 Lemon Test, but stakes up its “secular purpose” prong. The counties in this case urged the court to abandon its purpose inquiry, as have lots of constitutional law scholars through the years. But Souter saying there is no need for “judicial psychoanalysis of a drafter’s heart of hearts” goes ahead and does just that. Souter refuses to look only to the county officials’ last, secularized statements of purpose, writing, “they want an absentminded objective observer, not one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show.”
The courts are being asked, then, to do just what the courts were just asked to do in Kelo:ferret out disingenuous claims by government entities. When the state looks deep in our eyes and promises to respect us in the morning, the courts intend to step in and force them to call.
The final section of Souter’s opinion is a defense of the “neutrality principle” and a tit-for-tat response to dissenter Antonin Scalia’s magical mystery tour through constitutional history. Souter maintains that this case does not reflect government hostility toward religion in general or religious people in particular. “The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters … but to guard against the civic divisiveness that follows when the Government weighs in on one side of a religious debate.”
In his dissent, Scalia claims the Framers explicitly wanted God as worshiped by monotheists to have a role in the public life of the nation. Souter counters with evidence that other Framers did not, reminding us that there wasn’t just one guy called “The Framers” with a unitary view: “What the evidence does show is a group of statesmen, like others before and after them, who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined. And none the worse for that. Indeterminate edges are the kind to have in a constitution meant to endure.”
Chief Justice William H. Rehnquist’s majority opinion in Van Orden evinces only contempt for the Lemon Test, but apparently without the votes to kill it. Rehnquist dismisses Lemon as being irrelevant to the analysis here, arguing at length that celebrating the role of God in the nation’s heritage has a proud history in all three branches of government and including a virtual tour of every Decalogue on Capitol Hill. Not one to cringe behind the legal fiction of “secular foundational blah-blah,” he insists: “Of course the Ten Commandments are religious—they were so viewed at their inception and so remain.”
Finally, in an odd blame-the-victim twist, Rehnquist repeats several times that the Texas monument is “passive”; it’s simply standing there, minding its own business, whereas the petitioner Van Orden, as he repeats, kept “walking by.” The subtext here seems to be that it was damn ambulatory Van Orden who was the source of all the legal trouble in this case: If he’d just stood still like the monument, there would have been no constitutional offense on either side.
This brings us to the Breyer concurrence—the linchpin of both cases—since he’s the only justice who voted with both majorities. Calling this a “borderline” case and acknowledging that there are no clear tests, Breyer notes that “there is no test-related substitute for the exercise of legal judgment.” His legal judgment tells him that the Texas monument contains both a secular and a religious message (but that the Kentucky monument does not because of its “stormy” history). Breyer notes that the Austin Ten Commandments was donated by a third party (the Fraternal Order of the Eagles) and that it’s situated among other secular monuments. The clincher for him, however, is that the monument is 40 years old and no one has filed a lawsuit until now. This leads Prof. Douglas Laycock at SCOTUSBlog to conclude that there is now something of a “grandfather clause” for old monuments whereas newer ones can only be rendered constitutional with lies about their secular purpose. The two cases together must mean that if a display starts with a zealous religious purpose it can never be cured, but if it’s huge, old, and carries a Post-it-note claiming to be historical, it can never be wrong.
A lively debate is happening right now at SCOTUSblog over the possibility that the court’s intercession in these Establishment Clause cases is actually more “divisive”—if that’s the court’s big concern—than the religious monuments themselves.
So, does the Lemon Test truly live on? Only to the extent that it is and has always been a big constitutional mirror, a results-oriented morass that reflects back whatever the justices wish to see. Maybe Breyer is correct and there is no Establishment Clause test to explain the jumble of past case law and winnow out the truth in the hearts of men, which means the successor to Lemon will be decided not in judicial chambers or a conference room, but under the bright lights of the next confirmation hearing.
Tell me I’m too cynical.