Monday, June 27, 2005

Parsing the Constitution

In the 1960s, the Supreme Court attempted to define pornography, i.e., something not protected by the First Amendment, in a series of cases. The justices would huddle in the basement of the Court and review dirty films to see what was ok and what wasn't. Said Justce Potter Stewart, "I can't define pornography, but I know it when I see it."

That individualized level of review comes to mind when seeing the Court's decisions today on religious displays. In two separate decisions, the Court held that a framed copy of the Ten Commandments on display in a Kentucky courthouse is unacceptable, while a monument on the Texas capitol grounds is ok. The cases were decided 5-4, with Justice Breyer the one who switched his vote in the two cases. In the Texas case, Chief Justice Rehnquist, writing the plurality opinion (i.e., for four justices -- himself, Scalia, Kennedy, and Thomas), stated that the fact that the monument had been on display for 40 years without challenge was the determining factor.

Breyer cast the decisive vote, so that his opinion is much more legally significant (a fact that seems to be overlooked in the articles I've read). He found that where the monument was located (in a park as one of 17 monuments and 21 historical monuments), suggests State intended a non-religious, "moral message--an illustrative message reflecting the historical 'ideals' of Texans--to predominate." Breyer focuses almost wholly on intent in distinguishing the Texas case from the Kentucky case, stating that "the short (and stormy) history of the courthouse Commandments' displays demonstrates the substantially religious objectives of those who mounted them, and the effect of this readily apparent objective upon those who view them."

Still, the cases refused to lay out general guidelines on when it is acceptable for the government to display the Ten Commandments. Instead, they found that, in the words of Rehnquist in the Texas case, "No exact formula can dictate a resolution in fact-intensive cases such as this" (Breyer wrote something similar). This parsing of the minutely different situations puts lower courts in a difficult position -- odds are, the Supreme Court will need to hear a number of additional cases before a clear pattern develops on which the lower courts can rely. Moreover, if a justice or two steps down in the next few days, as is being rumored (Rehnquist &/or O'Connor), a pattern will be unlikely to develop for quite some time. In the meantime, in deciding when a display is acceptable, I guess they'll know it when they see it.


Q said...

Your main point, that lower courts will have difficulty knowing how to apply the decision, is certainly valid.

Looking at the issue more broadly, I have difficulty knowing how important it is.

I know it's the kind of thing that raises people's emotions. There are those who believe in an impenetrable wall between church and state, who want to completely exclude religion from the public square. Then there are those who are deeply religious, who take offence at precisely this, the exclusion of religion from the public square. It's a zero/sum game ? ultimately there will be a clear loser and a clear winner.

But, aside from its symbolic value, do Christians really think they've achieved anything by posting the Ten Commandments in a courthouse? Do they think it will change anyone's thoughts or behaviour, or make people any more religious than they already are?

I think faith has to be communicated in a much more personal way than that, if it is to have any impact. If Christians want to influence society, they will have to invest somehow in other people's lives.

By the same token, I don't see the threat to non-religious folks. If it can't help the Christian cause in any significant way, it can't harm the secular humanist cause either.

It seems like an awful to-do over something of little real consequence. There are better causes for people to embrace.

aaron said...

Good observation Q -- it really is a trivial pursuit our courts are tied up with. And truthfully, I'd meant to make that more clear in my post -- I feel that all he attention the justices gave to pornography was truly silly as well, which is parlty why I started my post as I did.

That being said, my subconscious must have been kicking this around some, because now I do see some merit to addressing these issues. If the courts yielded to the fundamentalists on this issue, I don't think it's reasonable to assume they'd be satisfied. They'd try something that pushes the envelope a little more, repeating as often as possible to get as much permitted as possible, as they desire to move things to the point where it truly would be invasive to those who do not share their beliefs. The same would hold true (in the other direction) if the Court yielded to those who would only be happy if every governmental reference to God and religion were eliminated (though the effect likely would be offensive rather than invasive). So I guess that without the courts addressing cases like these, you do run the risk of upsetting the balance.

Your point on what fundamentalists hope to achieve with this, I think, is misplaced (though as I've noted before, I'm hardly one to speak on their behalf). I don't think they aim to proselytize -- I think they simply believe that God belongs in every part of society, and their lives. It would seem to be consistent with their desire for prayer in public school.