I would have thought, with each of the two cases being decided by a single vote, and the Court finding an Establishment Clause violation in one case (McCreary) and not the other (Van Orden), that the Justice who shifted sides would be O’Connor. For it is O’Connor who has determined so many of the recent Establishment Clause cases and left the law in its multifactored disarray. But, no. It’s Breyer. O’Connor stayed put, taking the stronger Establishment Clause position in both cases. So the first opinion I wanted to read, in my hope that the Court has given us some crisp clarity today, is Justice Breyer’s.
Breyer emphasizes the “basic purposes" of the two religion clauses -- Free Exercise and Establishment -- taken together. We need to think about promoting tolerance and freedom, he says, referring to the “basic principles set forth today by Justice O’Connor in her concurring opinion" in the McCreary case. In this light, Breyer rejects the idea that government must “purge from the public sphere all that in any way partakes of the religious.” Such an extreme approach would “promote the kind of social conflict the Establishment Clause seeks to avoid … [and reflect] ‘a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.’”
But if we don’t take a strict separation of church and state approach, how are we going to articulate a clear, workable rule? Breyer doesn’t solve this problem. We will “inevitably find difficult borderline cases," he says, and "no test-related substitute" is going to spare us from needing to engage in "legal judgment.” The word “legal” with "judgment" is notable. Those who like crisp rules tend to think rules are needed to have real law and think ruleless “judgment” is not law. But Breyer defends complex judgment as law:
That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court’s prior tests provide useful guideposts–and might well lead to the same result the Court reaches today, no exact formula can dictate a resolution to such fact-intensive cases.Applying this judgment, the details about a particular display in a borderline case are going to matter a lot:
In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a historic relation between those standards and the law) -- a fact that helps to explain the display of those tablets in dozens of courthouses throughout the Nation, including the Supreme Court of the United States.This fact-specific analysis, in light of the purpose of the religion clauses, leads Breyer to conclude, tapping the terminology of the old Lemon case, that the Texas monument has a “primarily nonreligious purpose,” does not have the primary effect of “advancing religion,” and does not create “excessive government entanglement with religion.” To decide the other way would “exhibit a hostility toward religion” and “might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation.” In short, leaving this monument alone is more likely to avoid religious “divisiveness” than taking it down.
Here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. The circumstances surrounding the display’s placement on the capitol grounds and its physical setting suggest that the State itself intended the latter, nonreligious aspects of the tablets’ message to predominate. And the monument’s 40-year history on the Texas state grounds indicates that that has been its effect.
The group that donated the monument, the Fraternal Order of Eagles, a private civic (and primarily secular) organization, while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments’ role in shaping civic morality as part of that organization’s efforts to combat juvenile delinquency.…
The physical setting of the monument, moreover, suggests little or nothing of the sacred. The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the “ideals” of those who settled in Texas and of those who have lived there since that time….
40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner)….
The display is not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state. This case also differs from McCreary County, where the short (and stormy) history of the courthouse Commandments’ displays demonstrates the substantially religious objectives of those who mounted them, and the effect of this readily apparent objective upon those who view them. That history there indicates a governmental effort substantially to promote religion, not simply an effort primarily to reflect, historically, the secular impact of a religiously inspired document. And, in today’s world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, 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.
Breyer explicitly disagrees with the plurality opinion written by Chief Justice Rehnquist. He most strongly affiliates himself with Justice O’Connor’s concurring opinion that decided the outcome in McCreary. Her basic approach is correct, he thinks, even as he disagrees with how she applied it in this case.
So multifactored, contextualized judgment continues to be the rule about government displays with some religious content, and there will be borderline cases where the outcome is uncertain and reasonable judges will disagree.
Maybe the best advice is for the strict separationists to choose their battles well. And certainly, one thing is clear: leave the old monuments and courthouse friezes alone.