Last October, I predicted that the Supreme Court would embarrass themselves and insult us by actually making Establishment Clause jurisprudence even more muddy than it already is. (No small feat mind you!)
Court observers of today's oral arguments in the Ten Commandments display cases seem to confirm that my prediction will be proven right.
There is no longer any discernable Establishment Clause jurisprudence. The Supreme Court simply decides such issues on a complete case-by-case basis according to the personal desires and biases of the Justices. The decisions are based neither on law nor Constitutional wording, but rather on a results-oriented process wherein the justices will split factual hairs to an infinite degree in order to reach an outcome that jibes with their own personal comfort level in regards to religion.
Outrageous!
Whether you agree or disagree with Scalia's views on the subject,
it is at least a consistent, self-contained philosophy that can be applied to most any religious display case in such a way that the Court can finally settle the issue as a Constitutional matter and not be distracted by it in the future.
You could also respectfully argue for an opposite "zero tolerance" approach that consistently bars all religious displays and invocations in governmental buildings (including the ones in the Supreme Court itself, the Congressional building, and on the U.S. currency). At least one could plausibly argue that this approach is also intellectually consistent and based in the text of the Constitution (albeit, a textual interpretation that is extremely broad in my view).
The O'Connor/Kennedy-style approach will doom the courts of America to perpetual litigation over any display that vaguely invokes religious themes, as attorneys argue the significance of micro-issues such as: how big the display is, what surrounds it, whether or not it is near a court or a school (and why that should even matter), what the intent of the display creator was, what the subjective feelings of the viewer are, whether or not the display actually invokes themes that are "religious" versus secular, etc.
Is this the future that you actually want over this issue? If so, you're probably a lawyer....
Posted by Justin Levine at March 2, 2005 05:22 PM | TrackBack