It is time to look beyond result to some of the doctrinal implications of yesterday's Ten Commandments decisions. Here are a few of the things said along the way in McCreary County that merit further attention. A second posting will look at excerpts from Van Orden.
From Justice Souter's majority opinion:
Putting some bite into the "purpose" inquiry: "The Counties would read the cases as if the purpose enquiry were so naive that any transparent claim to secularity would satisfy it.... There is no precedent for the Counties' arguments.... [T]he secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective." (pp. 15-16) This is important because at least some lower courts have been ready to uphold governmental action motivated by religious considerations so long as some minor secular justification could be uncovered as well.
Diminishing the importance of symbolic expression: "Displaying that text [of the Ten Commandments] is thus different from a symbolic depiction, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view."(pg. 20). Justice Souter is old enough to remember the aphorism: "The medium is the message". Is it really only text that sends a message today?
Reaffirming neutrality: "Given the variety of interpretative problems, the principle of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause. The principle has been helpful simply because it responds to one of the major concerns that prompted adoption of the Religion Clauses. The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters... but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate...." (pg. 28). Given the fundamental challenge to Establishment Clause principles in recent years, this is a useful primer on behalf of a majority of the Court.
From Justice Scalia's dissent in McCreary:
Notion of a religious peoplehood: "[I]n the context of public acknowledgments of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling "excluded"; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority."(pg. 16) Rarely have proponents of governmental expression of religion so candidly acknowledged an interest in the government cementing a national (or state-wide) religious community.
