In his first post on the SCOTUSblog’s Ten Commandments mini-blog, Marty Lederman suggests that the Ten Commandments cases are of dubious importance and perhaps even damage the cause of separation. I think the arguments are plausible. First, quoting Ann Althouse:
“I think it’s very bizarre of us to regard the Ten Commandments case as the big case…[I]t really just isn’t that important whether there’s a monument amid other monuments somewhere on the state capitol grounds or a framed text amid other framed texts on a courthouse wall…There are ideologues who want to purge religion from the public eye who care [how the Court decides this particular case] and religionists who want to intrude a lot more of it who care. If either of these groups were getting very far, I would care about the outcome in the cases that would arise. But the displays at issue in this case are inconsequential. Still, they are too much for the extreme secularists and just the beginning of what extremists on the other side would like to see. The Court needs to draw a good line that fends off both extremes.
My only quibble with that is that she commits the same fallacy that Scalia does in his dissent in caricaturing the staunch separation argument. Even the most staunch advocates of strict separation do not seek to “purge religion from the public eye” and it is absurd to suggest that they do. Individual citizens and even political leaders express their faith in public a million times a day and no one attempts to stop them from doing so. What the staunch separationists seek to do is eliminate all forms of official government endorsement of religion. And yes, occassionally they even go too far in that regard (the lawsuit threatened over the tiny cross on the LA County seal was beyond silly). But to pretend that they actually have tried to remove all expressions of religion from the public square, even when they do not suggest government endorsement, is simply beating up a straw man.
But having said that, I think she’s probably right about the rest of it. These cases fascinate me because of the disparate types of reasoning. They’re interesting as academic exercises. But does anyone really think that such displays, whether they are allowed or banned, will change anything in either direction? I have little sympathy for those who claim to be offended by a Ten Commandments monument, for the same reason that I have little sympathy for those who are offended by allowing Wiccans in the military – there is no constitutional right not to be offended. I’m offended by all sorts of public displays of undignified or stupid behavior; I don’t think those things should therefore be banned to quell my discomfort. Regardless of the outcome of the case, does anyone on either side really think it changes anything that has a big impact on them? It’s a highly emotional symbolic issue, but it’s mostly sound and fury, signifying nothing.
Others have even suggested that by fighting out such issues, we may actually hurt the cause of true separation in the long term. By going after pointless symbolic displays, we may well provoke a backlash that leads to dangerous legislative activism like proposals to limit the jurisdiction of the courts. As Burt Neuborne, the former national legal director of the ACLU, put it:
One final staple of the progressive judicial agenda may not be worth defending at all. David Hume warned that cutting religion off from the state risked spawning an energized institution that could survive economically only by charismatic appeals to the populace. He urged feeding religion just enough to keep it from getting too hungry. He may have been right. The religious symbolism cases may do nothing but enrage voters who might be natural economic allies.
I have mixed feelings on this question and can see arguments on both sides. I do think, for example, that things like Michael Newdow’s crusade to get “under God” out of the pledge of allegiance and ban prayers from inaugurations (especially the latter, which is just off the scale silly) probably pushes otherwise reasonable moderates toward the other end of the scale and gives ammunition to the religious right. His case may well have had an impact on the 2002 midterm elections in terms of pushing moderate voters toward the Republican party, but there’s no way to prove that for sure. Certainly cases like the tiny cross on the LA county seal, or the cross in the Mojave desert do little but alienate otherwise reasonable people and feed their suspicions that separationists really do just hate anything religious. A little more discernment in terms of which cases are worth taking is probably a good idea on the part of the ACLU and others.
By the way, Neuborne has posted his analysis of the decisions to the SCOTUSblog’s group blog on this matter and it’s rather amusing. He writes:
Years ago, I proposed the “two plastic animals” rule to govern public displays of religious symbols. The rule posits that any religious symbol may be publicly displayed as long as it is flanked by two or more plastic animals of sufficiently bad taste. The Court has now refined the law of faith-based exterior decorating to allow a religious display if it’s matured sufficiently (I suppose the Pieta is per se OK), and if it is surrounded by a sufficient number of secular monuments of sufficiently bad taste.
On a more serious note, he concludes:
Once again, though, I’ll ask why do we care? I’m sympathetic to the notion that being forced to look at the government’s display of someone else’s religious symbol can be disconcerting and can send a message of exclusion. That’s why I’ve signed all of those briefs. But, tell me that Muslims in this country need a display of the 10 Commandments to let them know they are outsiders. Or, that atheists need government displays of religious symbols to tell them they are on the margin of American public life. To my mind, worrying about the symbols confuses cause and effect. As long as we insist on an equality principle – a Koranic verse at the Texas capitol, I don’t see the value in offending many millions of Americans for whom the displays provide solace and meaning. That’s particularly so when the cases enrage millions of persons who then forget about their economic best interests when they vote. I would hold my fire for the many settings when religious zealots use government to force people to behave a certain way. Move over Justice Breyer. I’m climbing in.
In a battle between principle and pragmatism, it may well be true that pragmatism should win out in this case. I’m not sure that’s true, but I think it’s plausible.