Dispatches from the Creation Wars

The Washington Post reports that in the aftermath of yesterday’s split decision, some prominent religious right leaders are planning a massive campaign to put Ten Commandments monuments at public buildings around the country. Their reasoning is rather bizarre:

Within hours of yesterday’s Supreme Court decision allowing a Ten Commandments monument on the grounds of the Texas Capitol, Christian groups announced a nationwide campaign to install similar displays in 100 cities and towns within a year.

“We see this as an historic opening, and we’re going to pursue it aggressively,” said the Rev. Patrick J. Mahoney, director of the Washington-based Christian Defense Coalition, which organized vigils outside the Florida hospice where Terri Schiavo died this year.

Although disappointed that the court ruled in a related case that two Kentucky counties could not hang framed versions of the Ten Commandments in their courthouses, Mahoney said the Texas decision was sufficient to “open up a whole new frontier” for preserving the United States’ “Christian heritage.”

One has to wonder what rulings they read to get this idea. The Texas monument was upheld only because Justice Breyer decided it had been there long enough that it was pointless to remove it and the Kentucky case reaffirmed the purpose prong of the Lemon test as important in determining the constitutionality of newer displays. Do you suppose the announced plans of the head of the Christian Defense Coalition are likely to be viewed as having a clear secular purpose? Here’s my favorite part:

Mahoney, a minister in the Reformed Presbyterian Church, said a coalition of evangelical Christian organizations would analyze the Supreme Court rulings and formulate guidelines for erecting Ten Commandments monuments that can pass legal muster. He said he sent fundraising letters yesterday to 600 potential donors, hoping to create a national fund to pay for the monuments.

Unless he’s planning on finding a way to travel back in time to meet the standard in Van Orden, I don’t think it’s gonna work. But it doesn’t have to work, you see, because the last sentence is the key to the whole thing. The monument in Texas that was at issue in Van Orden was placed there as part of a marketing campaign for a movie and it may well have put some extra cash in Cecil B. Demille’s bank account. Little has changed.


  1. #1 Dan
    June 28, 2005

    And so it begins.

    I’m not terribly eager to hang my hat on the whole 40-years thing, either. The van Orden plurality certainly didn’t. Last year’s presidential Thanksgiving proclamation has the same constitutional legitimacy thereunder as a 40-year old monument. The strategy, then, is predictable: the government can endorse some religious speech. The questions are how much, and under what circumstances. The religious right will be pushing for these answers: as much as we want, since we’re part of the majority; and under any circumstances, for the same reason.

  2. #2 KeithB
    June 28, 2005

    Could the purpose prong of the Lemon test have less weight in some circumstances?

    Let us say that these groups finance monuments that have famous Law documents through history and include, let’s say, The Magna Carta, The Constitution and various other historical examples. Would the fact that they put the others there to get around establishment issues count if it clearly *is* an historical exhibit?

    Or is this for the courts to decide? 8^)

  3. #3 Dan
    June 28, 2005

    KeithB: The purpose prong can have whatever weight a court decides to give it. Here’s what I mean by that. In McCreary, the Court looked at all the facts and circumstances, including historical facts relating to the display, and found an impermissible religious purpose. This was an example of a true purposive neutrality inquiry. I’m not suggesting that a true purposive neutrality inquiry always finds an impermissible purpose. What it does is look past the text of the law in question — past the articulated purpose — to the facts and circumstances that are evidence of purpose. It is to be contrasted with facial or formal neutrality, which is what you’d have gotten had Justice Scalia or Chief Justice Rehnquist written the opinion. The outcome, in that event, would have been much different. The inquiry would have been facial (e.g., looking only at the text of the resolution(s), and undoubtedly finding a secular purpose) or formal (e.g., looking at the facts and finding a secular purpose).

    Given the facts as you’ve described, could a court conclude that the purpose was secular? Certainly. It is a facts and circumstances inquiry. The nature and depth of the inquiry, though, clearly depends on who is looking for purpose. One of the fair criticisms of the purpose inquiry (like so many constitutional tests) is thus that it is underdeterminate — it does not lead to one clear, absolutely correct, outcome in all cases.

  4. #4 raj
    June 29, 2005

    If they use the 10C monuments as movie ads, which the one in TX was, they’d probably be able to do so. Is there another 10C movie coming out?

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