[T]here is “no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible.” . . . One must refer instead to the basic purposes of those Clauses. They seek to “assure the fullest possible scope of religious liberty and tolerance for all.” . . . They seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.
. . .
As far as I can tell,40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect,primarily to promote religion over nonreligion,to “engage in” any “religious practic[e],” to “compel” any “religious practic[e],” or to “work deterrence” of any “religious belief.”). . . . 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
. . . .
But, as I have said, in reaching the conclusion that the Texas display falls on the permissible side of the constitutional line, I rely less upon a literal application of any particular test than upon consideration of the basic purposes of the First Amendment ’s Religion Clauses themselves. This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.
Todd Zywicki has a post up on it today on Volokh Conspiracy:
Overall, if the divisiveness of religious displays is the test, this doesn't seem very divisive to me, especially when compared to much political rhetoric. Nor does this survey evidence bear out the assumption that the "greater diversity" of American religious belief today makes these displays more divisive or controversial than traditionally. And one suspects that if the survey results were broken down by geographic region, it would be even less divisive in many red states. Having lived in red states most of my adult life (unlike most members of the Court, I suspect), I can tell you from personal experience that these sorts of displays simply are not controversial or divisive in any meaningful way, especially when compared to other elements of the public dialogue.
Eugene Volokh posted on it a few days ago:
But I wonder: What has caused more religious divisiveness in the last 35 years -- (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court's decisions striking down such actions?
My sense is that it's the latter, and by a lot: All these decisions have caused a tremendous amount of resentment among many (though of course not all) members of the more intensely religious denominations. And the resentment has been aimed not just at the Justices but at what many people see as secular elites defined by their attitudes on religious matter. The resentment is thus a form of religious division, and I've seen more evidence of that than I have of religious division caused simply (i.e., setting aside the litigation-caused division) by the presence of Ten Commandments displays, creches, or even graduation prayers.
Isn't there something strange about a jurisprudence that in seeking to avoid a problem (religious divisveness) causes more of the same problem, repeatedly, foreseeably, and, as best I can tell, with no end in sight?
Unless I'm missing something:
1) Divisiveness hinges in part on popularity. If there's widespread support or condemnation for something, it's simply not divisive. Okay, so take the example of the "Red States." Maybe they wouldn't mind mandatory school prayer. In fact, let's hypothesize that 80-90% of people in a very red state would support school prayer. Does that lack of divisiveness act as a factor in favor of constitutionality? Since when is the validity of a constitutional principle up for grabs?
2) On the other hand, is this just an honest recognition of the political evolution that takes place during radical view shifts? Most of our current views on civil rights have at one time or another shifted from being considered odd minority rantings, to being so ingrained that we look upon the time before we had that right as backward. In other divisive areas, such as abortion, the Courts have justified the decisions on a newly-perceived, somewhat murky "penumbra of rights" without acknowledging that perhaps societal attitudes have shifted to find a right where there once was none. Then those who haven't made the shift talk about "activist judges." And they're not inaccurate. So the "divisiveness" factor could keep the balance in check? But again, that raises the issue: should it? If you've become convinced that a new way of looking at the constitution does in fact make something illegal that wasn't before, should you wait until it becomes more popular?
Just random thoughts. No, it's not a coherent position. I take the fifth. If that's all right with everybody else.
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