June 27, 2005

Why Justice O'Connor opposed both Ten Commandments displays.

As described in the previous post, in Van Orden (the Texas Ten Commandments monument case), Justice Breyer purported to adopt the approach to the Religion Clauses that Justice O'Connor articulated in McCreary. But in Van Orden, Breyer, unlike O'Connor, approved of the Ten Commandments display. Let's look at O'Connor in today's two cases. In the monument case, she writes only briefly and says she "essentially" agrees with Justice Souter -- even though she doesn't actually join his opinion. Here's a key passage from Souter's opinion:
[A] pedestrian happening upon the monument at issue here needs no training in religious doctrine to realize that the statement of the Commandments, quoting God himself, proclaims that the will of the divine being is the source of obligation to obey the rules, including the facially secular ones. In this case, moreover, the text is presented to give particular prominence to the Commandments’ first sectarian reference, “I am the Lord thy God.” That proclamation is centered on the stone and written in slightly larger letters than the subsequent recitation. To ensure that the religious nature of the monument is clear to even the most casual passerby, the word “Lord” appears in all capital letters (as does the word “am”), so that the most eye-catching segment of the quotation is the declaration “I AM the LORD thy God.” What follows, of course, are the rules against other gods, graven images, vain swearing, and Sabbath breaking. And the full text of the fifth Commandment puts forward filial respect as a condition of long life in the land “which the Lord they God giveth thee.” These “[w]ords … make [the] … religious meaning unmistakably clear.”

To drive the religious point home, and identify the message as religious to any viewer who failed to read the text, the engraved quotation is framed by religious symbols: two tablets with what appears to be ancient script on them, two Stars of David, and the superimposed Greek letters Chi and Rho as the familiar monogram of Christ.... It would therefore be difficult to miss the point that the government of Texas is telling everyone who sees the monument to live up to a moral code because God requires it, with both code and conception of God being rightly understood as the inheritances specifically of Jews and Christians.
And here is O'Connor's concurring opinion that determined the outcome in McCreary, the case that involved a framed copy of the text of the Ten Commandments, displayed on a courthouse wall. It's nicely short. Here's a key passage:
The First Amendment expresses our Nation’s fundamental commitment to religious liberty by means of two provisions–one protecting the free exercise of religion, the other barring establishment of religion. They were written by the descendents of people who had come to this land precisely so that they could practice their religion freely. Together with the other First Amendment guarantees–of free speech, a free press, and the rights to assemble and petition–the Religion Clauses were designed to safeguard the freedom of conscience and belief that those immigrants had sought. They embody an idea that was once considered radical: Free people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.

Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat....

Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation. The purpose behind the counties’ display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer.
We need to consult the main opinion in McCreary to see the particular details that led her to this conclusion, but we can see that the main concern is the purpose in setting up the display. The majority opinion -- written by Justice Souter -- basically adopted the district court's view that the state had a religious purpose when it posted the Ten Commandments in two courthouses. The additional historical documents that were put up alongside the original posting did not transform the display into a history lesson. They were simply a sham, meant to avoid the original problem posed by the posting the Ten Commandments in isolation.

So now we've looked at the two most interesting Justices in the two cases. The rest of the Justices did pretty much what we expected them to do. I'll have a little more to say about them later.

16 comments:

michael a litscher said...

The question I have to "separation of church and state" advocates (verbiage which appears nowhere in the constitution, it's amendments, the federalist papers, the anti-federalist papers, etc.) is this:

Specifically, which church is being "established" by the display of the Ten Commandments on public property?

Because if you can't answer that question, then clearly, no church or religion is being "established" (and no, Judeo-Christian isn't a church, nor a religion).

JLP said...

Good point, Michael. I have been wondering the same thing. This nation is thinking itself to death.

JLP

AllThingsFinancial

Kathleen B. said...

well I frankly wish this nation would do a little more thinking.

Michael, if I may attempt to answer your question, I believe the reasoning is: By displaying the 10 Commandments, the government is emphasizing, demonstrating a preference for, and promoting, Christianity. Promoting Christianity is tantmount to "establishing" the religion, which is prohibited. While the phrase "separation of church and state" may not be found in the Constitution, I submit that the Founders were not just concerned with the US "establishing" the new Chicken Religion where we all worship chickens. It was clearly concerned with the government establishing a Christian religion, since most of the people who came to America for religious freedom were of various Christian sects. The fact that now we have non-Christian minorities in this country shouldn't change the basic principle of the Amendment.

Now you probably do not think that displaying the 10 Commandments goes far enough in promoting Christianity to be considered "establishing" a Christian religion, which is obviously a fair viewpoint. But others disagree and thus, the dispute.

Sean said...

Well, Kathleen, the Ten Commandments are from the Old Testament, which is the Jewish Scriptures and is revered by Muslims. So I am not sure that every member of those two groups wants or appreciates your solicitude. I do recall that, in the Ohio case involving the state motto (a New Testament verse), the Ohio Muslim Council filed an amicus curiae brief supporting the state motto.

michael a litscher said...

Kathleen B.> By displaying the 10 Commandments, the government is emphasizing, demonstrating a preference for, and promoting, Christianity.

Class, can anyone else tell me who else, besides Christians, adheres to the Ten Commandments? Anyone? Anyone? Bueller? Anyone?

Judaism and Islam.

So I ask you again, specifically, which religion is being "established" as the official church of the State by displaying the Ten Commandments, thus violating the first amendment?

Kathleen B. said...

We all can certainly disagee on this one, but in my opinion it is pretty clear that displays of the 10 Commandments are not intended to promote Islam, or even Judaism regardless of the historical accruacy of such an idea.

Just look at former CJ Roy Moore.

michael a litscher said...

Kathleen B.> ...but in my opinion it is pretty clear that displays of the 10 Commandments are not intended to promote Islam, or even Judaism regardless of the historical accruacy of such an idea.

If the facts are getting in the way of your thinking, then it isn't the facts which need to be changed.

Mark Daniels said...

O'Connor is an intriguing person and remains a Goldwater Republican putting her at odds with today's crop of "neocons."

Tim said...

Well, Justice Stevens said that the 10 Commandments, as displayed near the Texas Statehouse, were written not just from a Judeo-Christian perspective, but of particular sect within that larger category:

Moreover, despite the Eagles’ best efforts to choose a benign nondenominational text,15 the Ten Commandments display projects not just a religious, but an inherently sectarian message. There are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.16 See Lubet, The Ten Commandments in Alabama, 15 Constitutional Commentary 471, 474—476 (Fall 1998). In choosing to display this version of the Commandments, Texas tells the observer that the State supports this side of the doctrinal religious debate. The reasonable observer, after all, has no way of knowing that this text was the product of a compromise, or that there is a rationale of any kind for the text’s selection.17

Kathleen B. said...

michael: "If the facts are getting in the way of your thinking, then it isn't the facts which need to be changed."

right back at you. It is a fact that the intent of some 10 Commandment displays is to promote Christianity.

michael a litscher said...

Kathleen B.> It is a fact that the intent of some 10 Commandment displays is to promote Christianity.

I've spent an hour trying to find a quote by Judge Roy Moore to back up your assertion, and came up empty. Please provide a link to back up this assertion.

Furthermore, as the Ten Commandments were delivered to Moses and the Jews he led out of Egypt, long before Christ walked the Earth, to suggest that the Ten Commandments promote Christianity above all other religions is absurd.

Kathleen B. said...

As Circuit Judge in Etowah County, one of [Moore's] first acts was to make a small wooden plaque of the Ten Commandments that was displayed in his courtroom. Concerning the Ten Commandments in the Etowah County Courtroom, "I knew there would be political and spiritual consequences," "On the other hand, I reasoned what a hypocrite I would be if I failed to acknowledge the God who was responsible for my new job."
http://10commandments.biz/biz/articles/2005/so_help_me_god.phtml

and here is a poem he wrote:
While truth and law were founded on the God of all Creation,
Man now, through law, denies the truth and calls it “separation.”
...
Our schools have become the battleground while all across the land,
Christians shrug their shoulders afraid to take a stand.
And from the grave their voices cry the victory has been won
Just glorify the Father as did His only Son.

http://www.morallaw.org/Text/birthright.htm

there is also this:
BILL PRYOR: Mr. Chief Justice? And your understanding is that the federal court ordered that you could not acknowledge God; isn’t that right?
CHIEF JUSTICE MOORE: Yes.
PRYOR: And if you resume your duties as Chief Justice after this proceeding, you will continue to acknowledge God as you have testified that you would today?
MOORE: That’s right.
PRYOR: No matter what any official says?
MOORE: Absolutely. Without – let me clarify that. Without an acknowledgement of God, I cannot do my duties. I must acknowledge God.

http://www.conservativeusa.org/JusticeRoyMoore2.htm (you have to scroll down a bit)

doesn't really look like he was trying to expand our knowledge of the historical roots of Islam, Judaism and Christianity to me. But I may just be "absurd."

michael a litscher said...

Kathleen B.> But I may just be "absurd."

And the thread which runs through every one of those quotes is that he posted the Ten Commandments because he wants to express his acknowledgement of his God.

What is missing from every one of those quotes is any intent to force others to acknowledge his God.

Also missing is any intent to publicly endorse, establish, or mandate any particular religion over any other, as you had insinuated above.

Perhaps you've confused freedom of religion with freedom from religion.

Kathleen B. said...

Also missing is any intent to publicly endorse..any particular religion

well I am pretty sure that an officer of the court, elected by the people of Alabama, posting the 10 Commandments in a public building because he is compelled by his Christianity to "acknowledge" and "glorify" God is actually publicly endorsing that particular religion.

Your argument was based on the premise that 10 Commandment displays were clearly not just Christian, but also Jewish and Muslim. But, I have shown that the intent of at least one backer of such a display was not in fact making a historical statement regarding Judaism and Islam, but was in fact acknowledging and promoting his Christianity.

Now you are changing your tune and stating that the question is whether the intent is to "force others to acknoweldge his God."
While one could argue that every time someone walked by his monument (which people would often be forced to do, since it is a courthouse) that person was forced to acknowledge Moore's God, that was not your original point. So are you now admitting that displays of the 10 Commandments can be explicitly Christian? remember If the facts are getting in the way of your thinking, then it isn't the facts which need to be changed.

michael a litscher said...

well I am pretty sure that an officer of the court, elected by the people of Alabama, posting the 10 Commandments in a public building because he is compelled by his Christianity to "acknowledge" and "glorify" God is actually publicly endorsing that particular religion.

What hasn't changed is that the display of the Ten Commandments STILL doesn't endorse any particular religion, because they are shared by several religions.

Your argument was based on the premise that 10 Commandment displays were clearly not just Christian, but also Jewish and Muslim. But, I have shown that the intent of at least one backer of such a display was not in fact making a historical statement regarding Judaism and Islam, but was in fact acknowledging and promoting his Christianity.

That a Christian posted the Ten Commandments doesn't change the fact that, again, they are shared by several religions, and thus don't endorse any particular religion.

Now you are changing your tune and stating that the question is whether the intent is to "force others to acknoweldge his God."
While one could argue that every time someone walked by his monument (which people would often be forced to do, since it is a courthouse) that person was forced to acknowledge Moore's God, that was not your original point.


It was a monument in a rotunda, not Torquemada's torture chamber. As such, no one was forced or compelled to acknowledge anything other than the fact that there was a large chunk of marble they may need to walk around lest they run into it.

So are you now admitting that displays of the 10 Commandments can be explicitly Christian?

Not by themselves, no. Not unless accompanied by some symbol or text which is uniquely Christian.

BTW, there's plenty of photographs of Roy Moore's monument here.

Kathleen B. said...

you have made a valiant effort Michael. We'll just have to agree to disagree.