Tag Archives: Ten Commandments

Fallon on Justice Breyer’s Van Orden Concurrence

The latest issue of the Harvard Law Review contains an extensive appreciation of a selection of Justice Breyer’s opinions. I thought to note one essay as particularly well done: Professor Richard Fallon’s discussion of Justice Breyer’s decisive concurrence in Van Orden v. Perry–one of two companion Ten Commandments decisions issued by the Court in 2005. In that concurrence, Justice Breyer decided for a variety of reasons that, he said, defied codification by test or iron rule, that the monument that had stood for many years on the grounds of the Texas state Capitol did not violate the Establishment Clause. Here is Professor Fallon (footnotes omitted):

Justice Breyer’s third ground for distinguishing prior cases, and especially McCreary County, seems to me to cut to the heart of the dilemma that the Supreme Court confronted. Even if the Texas monument’s long history did not dilute its religious message, that history served as a reminder that the Establishment Clause — read against the background of history — cannot, as Justice Breyer put it, “compel the government to purge from the public sphere all that in any way partakes of the religious.” From the beginning, religion has been woven in various ways into American public life. Recognition of this heritage does not, of course, point directly to the correct ruling in Van Orden. It does, however, help to identify the tension that Van Orden required the Court to resolve, or at least manage. Although the Supreme Court has frequently articulated a demand that the government must be neutral in matters of religion, neither that demand, nor what Justice Breyer referred to as the “Court’s other tests,” can “readily explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.”

Without purporting to offer a comprehensive resolution to the tension that the Court’s cases exhibit, Justice Breyer’s Van Orden concurrence suggests a narrow prescription that embodies pragmatic good sense. Although modern governments may not initiate novel forms of support for religious institutions and beliefs, the Establishment Clause should not be read to mandate the chiseling out — which in some cases might be quite literal — of all religious symbols and practices that have long formed part of the architecture of American public life, American public buildings, and American public monuments. To read the Clause so stringently would provoke anger at and resentment of the Supreme Court’s perceived hostility to religion far disproportionate to any good that this approach would achieve….

There is more, and it’s well-worth reading. I, too, admire Justice Breyer’s Van Orden concurrence, but while my reasons are similar to Professor Fallon’s, they are not identical. Perhaps the primary point of divergence in our perspectives is that my defense of historical settlements and practices as a guide to interpreting the meaning of the religion clauses does not depend either on judges’ pragmatic calculations about the comparative social divisiveness of ruling this way or that, or on an overarching or master commitment to religious neutrality, but instead on the intrinsic worth of long-standing historical settlements and customs (doctrinal and social) as a method of conciliating the conflicts that attend these controversies:

The past lies in us and is constitutive of who we are, and though history may be epistemically uncertain, logical certitude is hardly the point of a theory of religious liberty. This point serves as the connection to social history. If the doctrinal negotiations of the past are worthy, though imperfect, counselors for the predicaments of the present–if they are that which we know, and their memory is that which we have–then the objects of those negotiations deserve our attention as well. Political communities are not a-temporal or static associations. They are trans-generational enterprises that depend on the transmission of political and social histories….

The past, in sum, is a beacon. It is a consolation, sometimes effective, other times not, against the ravages of conflict, incommensurability, sacrifice, and tragic loss.

The Tragedy of Religious Freedom 123, 144.

Coogan, “The Ten Commandments”

This month, Yale University Press released The Ten Commandments: A Short 9780300178715History of an Ancient Text, by Michael Coogan (Harvard Divinity School). The publisher’s description follows:

In this lively and provocative book, Michael Coogan guides readers into the ancient past to examine the iconic Ten Commandments, also known as the Decalogue. How, among all the laws reportedly given on Mount Sinai, did the Ten Commandments become the Ten Commandments? When did that happen? There are several versions of the Decalogue in the Old Testament, so how have different groups determined which is the most authoritative? Why were different versions created?

Coogan discusses the meanings the Ten Commandments had for audiences in biblical times and observes that the form of the ten proscriptions and prohibitions was not fixed—as one would expect since they were purported to have come directly from God—nor were the Commandments always strictly observed. In later times as well, Jews and especially Christians ignored and even rejected some of the prohibitions, although the New Testament clearly acknowledges the special status of the Ten Commandments. Today it is plain that some of the values enshrined in the Decalogue are no longer defensible, such as the ownership of slaves and the labeling of women as men’s property. Yet in line with biblical precedents, the author concludes that while a literal observance of the Ten Commandments is misguided, some of their underlying ideals remain valid in a modern context.

Worth A Thousand Words

In my last post, I discussed the question of attribution of messages. Today, I want to turn to the perception of messages, in particular, the visual perception of religious symbols. We all know the saying that a picture is worth a thousand words. Does it make sense, then, for courts to distinguish between the textual and the visual, and to consider the latter less troublesome than the former?

Let me start with the European Court of Human Rights (ECtHR) Grand Chamber decision in the Italian classroom crucifix case, Lautsi v. Italy. The Italian government argued “[w]hatever the evocative power of an ‘image’ might be . . . it was a ‘passive symbol’, whose impact on individuals was not comparable with the impact of ‘active conduct’.” Referencing an earlier decision of the German Federal Constitutional Court, the applicants conversely argued “[a]s to the assertion that it was merely a ‘passive symbol’, this ignored the fact that like all symbols—and more than all others—it gave material form to a cognitive, intuitive and emotional reality which went beyond the immediately perceptible.”

The Grand Chamber explicitly addressed the active/passive distinction, stating that “a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court’s view, particularly having regard to the principle of neutrality. It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.” Several concurring opinions also addressed the designation of the crucifix as a “passive” symbol. The concurring opinion of Judge Power agrees with the majority’s assessment of the crucifix as a passive symbol “insofar as the symbol’s passivity is not in any way coercive,” but her assessment is more nuanced. She “concede[s] that, in principle, symbols (whether religious, cultural or otherwise) are carriers of meaning. They may be silent but they may, nevertheless, speak volumes without, however, doing so in a coercive or in an indoctrinating manner.” In her framing, the question is not whether symbols can communicate like textual language—she asserts they can—but whether the message communicated is one that violates the negative religious freedom of the observer under the Convention.

The ECtHR is not alone in asserting that visual religious symbols are “passive”: In Lynch v. Donnelly, Chief Justice Burger said the crèche was “passive”; in Allegheny County, Justice Kennedy used the “passive” label to describe the holiday displays; Chief Justice Rehnquist said the Ten Commandments monuments (featuring text) in Van Orden v. Perry were “passive”; in his dissent in McCreary County, Justice Scalia said the Ten Commandments display was “passive”; and the lower courts use the “passive” symbols language as well.

The “passive” label is used in two ways (alternatively or cumulatively). It can be an empirical claim about the way in which visual images communicate. Passivity used in this way suggests less ability to communicate effectively than textual speech. Or “passive” is a label for a bundle of factors—including brief exposure to the symbol, a vague notion of minimal offensiveness, or other characteristics of the symbol that result in its presumed noncoerciveness. But these notions, unlike the empirical claim, go to the context and cultural meaning of the symbol. The empirical claim is false; the neuroscience of visual perception just does not work that way. The context-and-cultural-meaning claim is complex and the “passive” designation is at best an ambiguous and misleading label. Either way, courts here and abroad should stop using the “passive” label to describe religious symbols.

Thanks, Mark and Marc, for having me over!

10 Commandments Judge to Return to Alabama Supreme Court

The Mojave Desert cross is not the only Establishment Clause icon to make a comeback this week. Roy Moore, the former Chief Judge of the Alabama Supreme Court, who famously defied a federal court order to remove a Ten Commandments monument from the state courthouse, has won election to his old job. In 2003, a state judicial ethics panel removed Moore from office for failing to comply with the federal court order. This week, the voters of Alabama sent Moore back to his former position. Moore told his supporters that he would continue “to stand for the acknowledgment of God,” but has promised not to try to restore the monument.

Virginia Ten Commandments Case Settles

A followup to a case we noted in October. Last month, a federal district court in Virginia approved a settlement in a case challenging the constitutionality of a Giles County high school’s display of the Ten Commandments. Under the terms of the settlement agreement, the school will replace the display with a page from a history textbook that mentions the Commandments without actually quoting them. As we discussed in October, the display pretty clearly ran afoul of existing Supreme Court case law, which is particularly strict about religious symbols in public schools.

Eighth Circuit Rules Plaintiffs Have Standing to Challenge Fargo’s Ten Commandments Monument

An interesting decision by the Eighth Circuit Friday suggests a way for plaintiffs who object to public religious displays to get more than one bite at the apple. In 2002, a group called the Red River Freethinkers sued the city of Fargo, North Dakota, alleging that a Ten Commandments monument on city property violated the Establishment Clause. A federal district court applied the endorsement test and ruled against the group in 2005, concluding that a reasonable observer in the circumstances would not perceive an official endorsement of religion. The Freethinkers did not appeal that ruling, but instead petitioned the city to accept a companion monument declaring that the United States Government was “not, in any sense, founded on the Christian religion.” Rather than display both monuments, the city initially decided to remove the Ten Commandments display altogether. That decision caused a public outcry, however, and the city reversed itself. The city decided to retain the Ten Commandments monument and indefinitely table the Freethinkers’ petition for the companion display.

At that point, the Freethinkers sued again, arguing that the city’s decision to retain the Ten Commandments but reject their secularist monument failed the endorsement test. The city objected that the Freethinkers lacked standing to bring this second suit, but on Friday the Eighth Circuit disagreed. The Freethinkers had alleged an actual, concrete injury — the Ten Commandments monument had made them feel alienated and unwelcome in Fargo, they claimed — which could be remedied by the monument’s removal. Moreover, res judicata did not bar the suit, because the Freethinkers had alleged a new injury resulting, not from the city’s initial decision to erect the Ten Commandments monument, but from the city’s decision to retain the monument without placing the Freethinkers’ monument alongside it — a decision which the city took after the initial lawsuit had ended. In a separate opinion, Judge Shepherd argued that, although the Freethinkers did have standing, they were unlikely to prevail on the merits. He would have dismissed the case.

I’m not sure whether the Freethinkers planned it this way, but their strategy of offering the city a secularist memorial has cleverly kept the controversy alive. They can effectively retry the constitutionality of the Ten Commandments monument, get media attention, and impose further litigation costs on the city. (It’s already been 10 years!). Could they do this repeatedly? Assuming they lose this round on the merits, could the Freethinkers wait a while, offer a different secularist monument, and start all over again? I’m not a civ pro maven, but I doubt it. Anyhow, it’s worked for them so far. The case is Red River Freethinkers v. City of Fargo, 2012 WL 1887061 (8th Cir., May 25, 2012).

Another Ten Commandments Case

It is a truth universally acknowledged, that the Supreme Court’s decisions regarding religion in America’s public schools are widely disregarded.  No matter how many times the Court rules that officially-sponsored school prayers are unconstitutional, for example, the prayers continue.  The same pattern holds with regard to public Ten Commandments displays – though here, the Court bears much of the blame.  The Court has issued three decisions on public Ten Commandments displays over the past three decades, but they turn on very specific facts and fail to announce an easy principle.  For example, in two decisions issued on the same day in 2005, the Court held that a display of the Commandments in a Kentucky courthouse was unconstitutional, because reasonable observers would perceive an endorsement of religion, but that a display of the Commandments on the Texas State Capitol grounds was constitutional, because, well, the display had secular elements and hadn’t seemed to bother people.  One could forgive local officials for being confused.

A new Ten Commandments case has arisen in Giles County, Virginia, where the ACLU is suing the local school board in federal court for ordering that the Commandments be placed in the lobby of a local high school.  The school board argues that it has displayed the Commandments along with other historical documents, like the Declaration of Independence, that show that the school is not endorsing religion as such.  But the Supreme Court has been particularly suspicious of displays of the Commandments in public schools, and the facts suggest that, as in the Kentucky case, officials in Giles County surrounded the Commandments with secular documents only after some parents complained Continue reading