Dispatches from the Creation Wars

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.


  1. #1 flatlander100
    June 28, 2005

    The problem with the “hell, it’s just not worth it” argument about [relatively] minor displays of government-endorsed religiosity is the old “slippery slope” argument. If the Stand Up For Jesus In The Courtrooms and Classrooms crowd would be content with a framed ten commandments on the odd wall here and there, I’d agree the battle would not be worth the fight. But they won’t. Recall Judge Moore, for example. I am convinced a great many of them look upon a court-sanctioned small framed Ten Commandments copy on a courthouse wall as but the first step, a toe [or cross] in the door, with a great deal more to follow.

    “They” want Jesus — and a particular Protestant fundamentalist version of Jesus — in the court room, and the classroom, every day, all day. By way of example, the following link to a story that appeared in the Baton Rouge [La.] Advocate yesterday:


  2. #2 raj
    June 28, 2005

    The 10C cases seemed to have inferentially reaffirmed the Lemon test. Particularly the “secular purpose” portion of the Lemon test. As a result, the imports of the decision are probably not that overblown.

  3. #3 Dan
    June 28, 2005

    I see the point here, but I think it misses the point. The issue isn’t whether the state can erect an unobtrusive monument — one that few people notice, and even fewer pay attention to — that endorses religion. We know the state can, because states have done that, and more, since before the states were states. Indeed, that is what Chief Justice Rehnquist’s van Orden opinion reduces to: we’ve done it before, so we can do it again. No, these cases aren’t about the symbols, but about the legal principles they symbolize. As with all things relating to the law, those legal principles are rarely, unlike the religious symbols at issue here, etched in stone. That alone, I suggest, is one of the reasons why the founding generation thought it important to have some degree of separation between church and state.

    So why, then, are these cases significant? To me, their significance lies in what they foreshadow. From a theoretical standpoint, they do nothing to provide any clarity in themselves. But the dissenting opinions in McCreary and the plurality in van Orden may give us some useful insight into where Establishment Clause doctrine is headed soon. Take Chief Justice Rehnquist and Justice O’Connor out of the picture and replace them with any two Bush appointees, and what do you have? McCreary goes 5-4 the other way; van Orden likely goes 5-4 the same way (I tend to agree with those who speculate that Breyer split for strategic reasons, and that if there is a majority without him, he votes the other way in van Orden).

    If we run with this scenario, McCreary doesn’t get decided on purposive neutrality grounds. It goes the other way on formal neutrality grounds, consistent with the line of funding case decisions. This entrenches formal neutrality in the religious speech cases. The critical issue then becomes: how far does the Court run with formal neutrality? Does it end with places like statehouses and courthouses, or does it continue on to schoolhouses? Graft the not-so-subtle majoritarianism of Justice Scalia onto formal neutrality and what do you get? Prayers at graduation ceremonies and football games and yes, even in the classroom.

    I’d be glad for someone to tell me why this analysis is wrong, and to convince me that these cases really aren’t that important. Please.

  4. #4 Ed Brayton
    June 28, 2005


    I agree with you here, and didn’t mean to imply otherwise. I probably didn’t express this nearly well enough in my post, but I agree that the legal reasoning in the cases is important, while the actual outcome – whether the monuments come and go – is not. Obviously I agree that the legal reasoning is important, or I wouldn’t have written yesterday about the bold reassertion of the Lemon test and what it portends in other cases. But that may actually feed the argument that taking on cases like this, where the outcome is irrelevant, is dangerous. “Our side” took a hell of a risk here. There was a damn good chance that the outcome could have been a dumping of the Lemon test or, at least, a rejection of the purpose prong and that would have had far-reaching implications in cases that are important. By forcing the courts to apply such standards to trivial cases, we run the risk of having them treat the legal principle as expendable precisely because it leads to trivial results. In other words, I think we dodged a bullet here and that bullet may well have come from our own gun in a sense.

  5. #5 Dan
    June 28, 2005


    I see your point, but it is clear that I didn’t do a very good job of explaining mine. Yes, there is a risk that constitutional doctrine will be changed over relatively trivial matters. My point, though, is that the handwriting seems to me to be on the wall. If Lemon survives more than a couple of years after two Bush appointments, I’ll be shocked. If it isn’t overruled expressly, it will be sub silentio. The value of these cases is strategic. Assuming that Lemon’s days are numbered, how should those who favor more robust separation be planning for the future? These cases give us some insight into that strategy.

    Of course, speculating about future outcomes based on past results is a risky proposition when the Supreme Court is involved. I saw these cases coming out a lot of ways, but I really was blindsided by the McCreary purposive neutrality analysis. But to the extent that a future majority may have tipped its hand, I see yesterday’s decisions as a worthwhile risk. My argument has less force — and indeed, may be altogether defeated — if you reject the premise that Lemon’s demise is inevitable. In that event, it is plausible to conclude that all yesterday’s cases did was to further consolidate opposition to Lemon and make its end more likely.

  6. #6 Ed Brayton
    June 28, 2005

    Dan wrote:

    I see your point, but it is clear that I didn’t do a very good job of explaining mine. Yes, there is a risk that constitutional doctrine will be changed over relatively trivial matters. My point, though, is that the handwriting seems to me to be on the wall. If Lemon survives more than a couple of years after two Bush appointments, I’ll be shocked. If it isn’t overruled expressly, it will be sub silentio.

    Well, I think Scalia is right that Lemon has been used unevenly over the years, sometimes ignored and sometimes invoked. I was actually heartened yesterday that 4 justices so boldly reasserted the validity of Lemon, and the purpose test in particular. I think whether its demise is inevitable depends upon who leaves the court and by whom they are replaced. Replace Rehnquist with McConnell or someone similar and nothing changes. Replace O’Connor with McConnell or someone similar and everything changes, and not just for church and state cases. Some things will change for the better, as McConnell at least would almost certainly be a more consistent and principled justice than O’Connor, but there are particular cases where it would be a problem for me. On the other hand, replace O’Connor with Gonzales and we really don’t know what will happen. So obviously the upcoming confirmation battles are of the utmost importance.

  7. #7 raj
    June 29, 2005

    I’ll just point out that Lemon is a balancing test. There are three prongs of Lemon. The “secular purpose” test is only one of them. The “purpose” of the Texas display was of a movie ad, which was arguably secular. The purpose of the display in the KY case was to advance a degree of religion. There is context to these cases, and the court appears to have recognized it in their apparently divergent decisions.

    What I cannot figure out is why so many people in the US put so much stock in what were nothing more than movie ads–which is what the TX display was. Can someone please explain it to me?

  8. #8 Ed Brayton
    June 29, 2005

    raj wrote:

    What I cannot figure out is why so many people in the US put so much stock in what were nothing more than movie ads–which is what the TX display was. Can someone please explain it to me?

    Most don’t know and even fewer care what the origins of the monument are. They just know that the Ten Commandments are good.

  9. #9 Matthew
    June 29, 2005

    I don’t really see any benefits of the pragmatic approach. Conversion to secularism isn’t going to happen for these people, and if the people we are going to lose aren’t secularists either, I don’t see what other choice there is. If secularism can only be won through the courts then that is where the battle should be fought. I don’t want a document that endorses slavery to be on government property.

  10. #10 raj
    June 30, 2005

    In response to the title of the post: yes. If people just ignored the crap, it would go away.

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