Tuesday, June 28, 2005

Drawing a line in the mud

The U.S. Supreme Court's pair of Ten Commandments decisions handed down Monday were all about pragmatism.

The justices suggested the dispositive issue in McCreary County v. ACLU, in which the Court declared two Ten Commandments displays in Kentucky unconstitutional, and Van Orden v. Perry, in which the Court said another Ten Commandments display in Texas passed constitutional muster, was whether government officials' purpose for erecting the monuments was to promote religion or to commemorate the historical roots of law.

But an unspoken undercurrent in the decisions seemed to be that the Court is likelier to offer the benefit of the doubt to religious displays that have been entrenched for a long time, like the monument in Van Orden that has sat outside the Texas Capitol for more than 40 years, than to newer displays, like the framed Decalogues in McCreary County that were posted just a few years ago. (Law professor Ann Althouse makes a similar observation at the end of a lengthy analysis of the cases.)

For clarity's sake, some legal observers understandably would have preferred a bright-line rule for religious displays on public property -- "They're always OK" or "They're never OK" -- but either outcome would have caused severe fallout. A ruling that allowed all such displays effectively would have eviscerated the Establishment Clause, while a ruling that barred all such displays would have had the same effect on the Free Exercise Clause.

Neither result would be tenable or constitutional, which is why Justice Stephen Breyer noted in his Van Orden concurrence that when it comes to such disputes, "[T]he Court has found no single mechanical formula that can accurately draw the constitutional line in each case." Instead, a case-by-case approach is necessary.

The muddy-water dichotomy the Court drew Monday likely will give future justices the precendential basis upon to which to invalidate government displays meant to promote a particular religious agenda. It also likely will provide the grounds to uphold such long-standing imagery as the phrase "under God" in the Pledge of Allegiance and the words "In God We Trust" on our money. As such, it's a very pragmatic stance indeed.

For the record, I correctly predicted a few months ago that the margin in each case would be 5-4, but I was wrong about who the swing vote would be. Justice Sandra Day O'Connor was the tiebreaker in many past Establishment Clause cases, but in a surprise move, Breyer broke the deadlock this time. Also, I correctly guessed that the justices would approve of one display while rejecting the other -- a way to tell government officials "this far but no farther" -- but I placed each case in the wrong category because I overestimated the significance that the justices would attach to the Kentucky displays' present historical context.

However, because the Kentucky county officials posted the accompanying historical documents only after the ACLU threatened a lawsuit over stand-alone Ten Commandments displays, and because the Texas monument for decades has been one of several dozen on the Texas Capitol grounds, I can't say I disagree with the outcome of each case.

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