Wednesday, June 29, 2005

God save this honorable court...?

In case you live in a bubble (whether or not it happens to be the Valpo bubble), you should know that the Supreme Court decided that a display of the Ten Commandments indoors in Kentucky courthouses is unconstitutional, while an outdoor monument of them in Texas is fine. One Justice, Breyer, was the swing vote. What was the difference in the two cases? If you read his opinion, you see that the difference is that nobody complained for 40 years about the monument. Allow me to quote some of my favorite bloggers, the Powerline crew:

The reasonable man test (what a reasonable person would do in a particular situation) is a staple of the law. So too, the objective observer standard, invoked with some skill by Justice Souter (though deconstructed in Justice Scalia's dissent) in the Kentucky Ten Commandments case. But Justice Breyer rests everything on the jackass test -- the government can display the Ten Commandments on public property in your town unless one jackass decides, within an unspecified time period, to get sufficiently worked up about it. I suspect that this is all the invitation the jackasses of America will need to get worked up en masse.

In the end, the two decisions are unified by the common thread in these kind of cases. Basically, the Supreme Court has decided to "grandfather" religion. In this context, that means leaving references to it on the coins and the old buildings but beating back new references. Perhaps some of the Justices hope that religious belief will wither away as it has in Europe, thus putting an end to what Justice Souter calls "the divisiveness of religion."

This is hair splitting to a most ridiculous length. Whether religion in these contexts is lawful needs a consistent answer, something that was deliberately denied here. Whether it is good or prudent to allow religion here is something open to debate. Whether it is consititutional should be decided.

God save this honorable court...?


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