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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, July 12, 2005 ::
    Back to the Ten Commandments issue

    With Supreme Court rumors temporarily locked into a holding pattern, let's go back to MacReary, the decision striking down the Kentucky courthouse display of the Ten Commandments.

    The opinion by Justice Souter for the Court breaks no new ground, but it clarifies the state of play. It is based on three pillars: original intent, precedent, and religion as divisive.

    1. Original intent. Justice Souter virtually concedes that there is substantial evidence of noncoercive governmental endorsement of Christianity in the founding era, but insists that by tossing Jefferson's refusal to issue a Thanksgiving proclamation into the mix, and tossing in after it some second thoughts by the aging and long-retired Madison, he can flip the original intent factor over to his side. According to him (and I guess the Court, at least for now), evidence of public secularism by the Founders supports his point, while evidence of their public Christianity only means "Homer nodded," as Souter puts it, quoting from his own Weisman concurrence.

    2. Precedent. Boils down to: Even if we've been getting the Establishment Clause wrong for 58 years, still, 58 years is a long time, and stare decisis, you know. Actually it's hard to see that many expectations have formed in reasonable reliance on Everson and its progeny; to the contrary, local governments will keep putting up all these sodding creches and Commandments displays, won't they? It seems that far from relying on Everson and Lemon et al., people are relying on their eventual overruling. But never mind.

    3. Religion is divisive. This is a regularly recurring trope in the Everson line, especially in McCollum (with only Zorach as an unexpected exception). Oh, the rivers of begged questions:

    * Is religion always divisive? Was Scalia wrong in arguing that the graduation prayers in Weisman were a unifying experience, multicultural in the best sense?

    * Even if religion is always divisive, does that have anything to do with the text we're supposed to be interpreting? That text's commandment (so to speak) is: don't set up a state church; not, keep all public space antisceptically secular.

    * Even if religion is always divisive and the Establishment Clause licenses the Supreme Court to enforce the consequences of that 17th century insight (generally seen as derived from the Thirty Years War and the Peace of Westphalia), does keeping public spaces rigorously secular, by court order, really conduce to religious peace? Does anyone think religious tensions were lessened in McCreary and Pulaski Counties, KY, by the Court's decision? I have no reason to think they were actually inflamed by it, but neither is there evidence that they were inflamed before, unless the litigation itself proves religious inflamation. After the McReary decision, however, one must assume that Christians in those counties are angry. Funny how making Christians angry is so often seen as the way to prevent "religious divisiveness."

    :: David M. Wagner 11:39 AM [+] ::

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