June 27, 2005

Putting aside the "brooding and pervasive devotion to the secular."

(Also posted on the SCOTUSblog Ten Commandments discussion.)

In Van Orden, Justice Breyer quotes Justice Goldberg:
[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.

“Brooding… devotion to the secular” – that’s a phrase that has always struck me too. What do we really think we are doing with the Separation of Church and State? It should be that we are invigorating our culture, not grimly purifying it, squeezing out the heartfelt expressions of real people, scrubbing away traditions perceived as tainted.

In McCreary, Justice Scalia begins with a story about himself:
On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”

Even as the Establishment Clause is fundamental to our national identity, we have not taken it to have a thuddingly heavy meaning. We have found some air in it, some room for the expression of human beings who, despite their placement in government positions, naturally speak of God. They could learn to watch themselves and avoid such expressions, but we haven’t required it.

Installing a big permanent stone monument is scarcely the same as speaking “God bless America.” It’s the very opposite of spontaneous human expression. But it’s an old stone monument, and most people either don’t notice it, don’t mind it, or get a positive feeling from it. To take it down now is so inexplicably intrusive to ordinary people who’ve gotten used to it or who never noticed it before but would surely notice the removal. I find it easy to align myself with Justice Breyer and say surely tolerating this old monument can be part of what it means to get along in a pluralistic society and therefore part of the real meaning of the Establishment Clause.

I can accept McCreary too. The framed document inside the courthouse, put up recently, is different enough. It's odd to have two different outcomes, and part of me would prefer a crisp rule, if for no other reason than to convey to ordinary people that there really is law here. But continuing the complicated analysis of what Justice Breyer calls the "borderline" cases is not going to destroy us. We can tolerate some complexity if we must.

Maybe it's better that it's not so easy to see what's permitted and what isn't, and those who make the decisions whether to file lawsuits can exercise a little discretion about what is worth fighting for. Clearly, old things carved in stone should be left alone. (A rule that rhymes.) Recent stunts by political panderers: go after that.

18 comments:

vnjagvet said...

The story quoted from Justice Scalia reminded me of my subliminal memories from World War II (I was five when it ended).

I remember being around the radio when FDR called the nation to prayer on DDay. That the President sonorously invoked God's blessings for what seemed to a four year old a long time (it times out at 6:33) made a real impression on me.

You can read and hear the prayer at: http://www.historyplace.com/speeches/fdr-prayer.htm

It is hard to explain to non-lawyers why the Constitution, the words of which are unchanged since the Bill of Rights were adopted, allowed the President to publicly make such overt pleas to the deity 61 years ago in a time of the nation's great distress and under jurisprudence of the last 30 years seems to forbid them today.

I am confident that all of the networks carried that prayer without criticism or comment. It is difficult to imagine that happening today.

It sure must be an interesting area to teach, though.

The Mojician said...

I believe that the justices have made room for "In God We Trust" on our coins and "one nation under God indivisble" in the pledge allegiance. In kindergarten I truly believed that the words were "one nation under guard."

Pancho said...

I'm wondering if I will still be able to say "Goddammit" in public when my local government uses it's new found powers of eminent domain to take my house in order to build a shopping mall?

The Mojician said...

Pancho: I am thinking that you will be able to say it but not be able to sing it.

Goesh said...

Regarding the pledge, I always thought as a child that it went, "....invisible without liberty"

Ann Althouse said...

So there are lots of eminent domain jokes in the offing I suppose...

Charles said...

Funny how liberals and socialists want to rid society of religion, until of course, it is necessary to have those trappings to wrap themselves in to be popular/weather a crisis/get elected. No wonder they fear the local priest or Catholic church refusing them that entitlement of religious cover.

DNR Mom said...

Ann: To reverse your statement, please speculate on how the public would perceive people "in government positions . . . naturally" speaking of the ABSENCE of God. Thanks.

Ann Althouse said...

DNR Mom: You'll have to be more specific. There are risks in anything a political actor says that people will react negatively. But, to manufacture a hypothetical: if on 9/11, we had had an atheist President, and he'd said, "This shows there is no God that can help us," I'd say it would be damned unpopular. Failure to mention God on the other hand, might go unnoticed. Don't assume all the excessive "God bless America" that we hear these is popular with everyone.

digitalmule said...

As Jim wrote,
"It is hard to explain to non-lawyers why the Constitution, the words of which are unchanged since the Bill of Rights were adopted, allowed the President to publicly make such overt pleas to the deity 61 years ago in a time of the nation's great distress and under jurisprudence of the last 30 years seems to forbid them today." While I appreciate that law professors live to discern the precise number of angels dancing on the head of an amendment and whether or not any new angels have appeared since the last term, ordinary citizens do not. They find the notion of a Supreme Court that can't clearly define when a representation of a religious document can or cannot be displayed on public property, generating 10 opinions on the subject along the way; that nevertheless can rule that local governments should be able to take property from individuals and give it to local developers maddening. My sense is that law professors as a group have the skills and the wherewithal to fight unjust takings far more effectively than is typical of most citizens so they can afford to relish arguments fashioned from the sheerest of pretext no matter the effect on the broader culture.

pct said...

It strikes me that what Justice Breyer is trying to do is essentially grandfather in established religious references while prohibiting new ones. This concept is well-established in e.g. building codes but is novel in Constitutional Law.

Ann Althouse said...

Pct: Good observation. Breyer's a pragmatist and it's a solid pragmatic approach. We're not redoing the coins to take off "In God We trust."

vnjagvet said...

The problem with grandfathering as a concept is that it is traditionally a way to effect a change in newly enacted legislation without harming those who relied on the law preceding that new legislation.

What we are dealing with here is interpretation of language that has remained unchanged nearly since the Republic was founded.

Unless we posit that the Supreme Court has the power actually to amend the constitution (an assumption that I believe even the most avid advocate of a "living constitution" will not overtly articulate), grandfathering seems an inappropriate remedy, pragmatic as it might seem.

However, it is at least "crisp", since it is an easy concept to grasp, recognize and apply.

digitalmule said...

It seems to me that pragmatic is as pragmatic does. Does this set of opinions resolve the issue or will we face endless additional rounds of how old is old enough, how raised must a typeface be to be too high, how many additional documents inserted in the set before religious becomes historic? For millions upon millions of citizens it was political pandering that lead to the decisions removing religion from the public sphere in the first place. I think they are watching the court try desperately to extricate itself from that flawed support of political pandering without apparent success; becoming ever more cynical about the federal courts as the issue drags on decade after decade no matter how prettily Justice Breyer skips from one pin head to another.

DNR Mom said...

Ann: The last line of your 7:50 a.m. response says it all. Way to go.

Ann Althouse said...

All except the omitted word "days."

digitalmule said...

If you will accept voluntary prayer in school as a proxy for the display of religious symbols on public property; then a consistant two thirds or so of the public supports the inclusion of religious symbols and voluntary acts in the public sphere if the polling data I have just glanced at it is correct and has since 1962.

Sean said...

It's hard to accept grandfathering as a principled interpretation of the Constitution. Rather, it appears to be a political strategem. Requiring the destrustion of existing religious references might excite enough political criticism to cause the Court to be challenged in its secularist campaign. By prohibiting new religious references, and allowing age and time to slowly destroy the existing references, the secularist campaign can succeed gradually without ever arousing major opposition.