June 28, 2005
traditional bullshit
I knew when I first saw that SCOTUS had split its decision in the 10 Commandments cases that the Dominionist Christians would pounce on the victory. They've not disappointed:
Within hours of yesterday's Supreme Court decision allowing a Ten Commandments monument on the grounds of the Texas Capitol, Christian groups announced a nationwide campaign to install similar displays in 100 cities and towns within a year."We see this as an historic opening, and we're going to pursue it aggressively," said the Rev. Patrick J. Mahoney, director of the Washington-based Christian Defense Coalition, which organized vigils outside the Florida hospice where Terri Schiavo died this year.
Although disappointed that the court ruled in a related case that two Kentucky counties could not hang framed versions of the Ten Commandments in their courthouses, Mahoney said the Texas decision was sufficient to "open up a whole new frontier" for preserving the United States' "Christian heritage."
What Mahoney has blithely neglected to realize is that his plan fails fantastically under the Lemon test, even if the monuments are staged in a setting identical to the one on the Texas Capitol, because the purpose of the government act in question there was secular. Mahoney's purpose, and by proxy, the purpose of any legislature that he and his minions managed to prod, would not be secular, as demonstrated by his optimistic comment about the ruling opening a "new frontier" of US "Christian Heritage."
The Lemon Test, by examining the purpose and effect of the government action, is contextual - there isn't necessarily an intrinsic violative quality that one religious symbol on government property possesses that another does not. And if a court ever considers the surrounding circumstances of Mahoney's fantasy plan as described above, it'll have little trouble finding a non-secular purpose.
Also interesting was Scalia's dissent in the Kentucky case, one of his boldest yet. Scalia advanced his argument, which can be seen in seedling form in earlier establishment clause decisions, that monotheistic religious majorities following have more rights than minorities. The religious majority club is comprised of Christians, Jews, and Muslims, according to Scalia. Polytheistic religions need not apply. This monotheistic argument is rooted to his absolutely bullshit 'tradition' argument, seen elsewhere (including the Vatican - recall that Scalia is a devout Catholic, even an Opus Dei member).
Jack Balkin shreds Scalia's dissent, which I was waiting and hoping for as soon as I read it. Balkin has taken Scalia to task for his reliance on 'tradition' in the past, but Scalia's perception of what constitutes tradition is exposed by Balkin as inconsistent and opportunistic, especially in light of his inclusion of Islam in the "big three." Just imagine a glass encased Koran as part of a 'Great Books" outdoor display at your local City Hall - it'd last a day, if that. Indeed, the tradition Scalia relies on in his dissent is decades from even becoming a norm.
Balkin says it better:
Once again, I must insist, as I have before in other posts, that although Justice Scalia repeatedly claims that his theory of adherence to text, original understanding and tradition is superior because it constrains judges from imposing their personal views into the Constitution, it does nothing of the sort. This case is a perfect example. Justice Scalia has particular views about religion and about what sorts of government invocations of religion should or should not be regarded as offensive or as marginalizing people with different religious beliefs than his own. These political beliefs produce the outcome he takes in this case.
I'll only add to that it may not be political beliefs that shape Scalia's opinions, but, ironically - given the subject matter, religious beliefs.
posted by scott pilutik at June 28, 2005 09:48 PM