Breyer patch
Justice Stephen Breyer, appointed by President Clinton and generally considered part of the Supreme Court's liberal bloc, provided the swing votes on the Ten Commandments decisions Monday.
He was OK with them in Texas but not in Kentucky.
I've provided lengthy commentary already about these cases, but Breyer's thinking deserves a bit more scrutiny because he alone can provide the decisive voice on future cases of this type.
Yet his voice is hardly decisive at all.
He can go either way, depending on the circumstances.
Let's go back over the facts that led him to view the Ten Commandments monument on the Texas Capitol grounds as acceptable (he didn't write anything in the Kentucky case but signed on to the majority opinion):
The monument contains "a religious message but also a secular moral message."
But isn't that true of the commandments wherever they're displayed?
The monument was donated by "a private civic (and primarily secular) organization..."
So where it comes from matters as much as its content?
"The physical setting of the monument ... suggests little or nothing of the sacred. ... The setting does not readily lend itself to meditation or any other religious activity."
Well, what if somebody did stand there are pray or meditate? Would that transform the monument into an unconstitutional establishment of religion?
"As far as I can tell, 40 years passed in which the presence of the monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner.)
So maybe the Kentucky displays would have been OK, too, if no one had filed a lawsuit?
"And, in today's world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not."
Is Breyer saying that if the Texas monument had been set up in 2001 instead of 1961, it would have been less constitutional because -- what? -- the constitution has changed since then? How about if it had only been there since 1971? OK? Then how about 1981? Maybe? 1991? Uh, not sure about that?
But wouldn't it be a whole lot better to say whether you think any public display of the Ten Commendments on public property amounts to an improper establishment of religion or not? (I think not because no religion is being established, and the nation in many ways since its founding has acknowledged the existence of God; i.e. "endowed by their Creator," "In God We Trust.")
Come on, Justice Breyer. You're paid to make decisions. The other eight did -- four squarely on one side, four on the other.
You're tangled up in a Breyer patch of your own making.
Comments (4)
To report abuse of the comment feature on this site, please use the feedback form at the bottom of any page.
Doug, he does not seem to mind the self-flagellation. Indeed, he seems to relish it.
And with respect to the Constitution, of course it has changed since 1961. It morphs even as we gaze upon it.
Posted on June 30, 2005 8:32 PM
You made a brief reference to the Founding Fathers' intent about acknowledging God (or a creator anyway) and things like that. I do not believe they meant to for this to be a "Christian" country, but more importantly I don't think it matters a bit if they did. They never intended the slaves to be freed or for women to get the vote either. As the world has changed, so have the freedoms. Freedom of speech now covers how people express themselves through other ways, such as art and music. I think avoiding "establishing" a religion should be expanded to include endorsing or promoting one. No matter the intent, things such as Ten Commandments monuments in courthouses imply that the courthouse is there maybe just a little bit more for the people who value the Commandments than those who don't.
Besides, in a courthouse a judge is required to make decisions by human law, ignoring what they may believe to be God's law. A judge or jury may have to impose the dealth penalty with "Thou shalt not kill" written behind them. Why would people of the Jewish-Christian-Islamic family of faiths who consider the Ten Commandments holy want them mocked like that?
Posted on July 1, 2005 12:29 AM
The Constitution has been amended to do away with slavery and allow women the vote. It has not been amended to change the establishment clause. Judicial interpretations have changed.
There may be a place for that in some cases, but Breyer's soft thinking in this case shows how much confusion that can cause. He's literally saying that something that passed constitutional muster as little as 40 years ago might not today. By what objective standards is he offering that view? What is the lifetime of current Supreme Court decisions -- 40 years? Less?
Maybe the Supremes are afraid they'd put themselves out of business if they ever said, "Here's our ruling, and we're sticking with it!"
Posted on July 1, 2005 12:54 PM
I don't think Breyer is really saying something was constitutional 40 years ago but isn't now. I think there may be a certain enthusiasm for the status quo, which may be a little cowardly, but is often the way things work. I suppose monuments that have been there can stay, but erecting new ones is a bad idea. In a way it's a really good compromise.
Personally, I think we should just get rid of all of them. It seems so strange to me that conservatives who disdain government so much are at the same time so eager to try to elevate it to something holy by stamping religious icons onto it.
Posted on July 1, 2005 2:12 PM