Wednesday, March 02, 2005

Interesting, but unpersuasive

Today's the day the Supreme Court hears the two Ten Commandments cases, one from Texas and one from Kentucky. Duke constitutional scholar Erwin Chemerinsky is on the case for Van Orden, the Texas appellant. (These links and more found at How Appealing.)

Both sides come armed with stacks of amicus briefs. The one from the conservative Ethics and Public Policy Center uses an unusual rhetorical strategy for legal writing: pictures, like this,

Moses presiding over Library of Congress reading room

--the point being that "[t]he traditional incorporation of the Ten Commandments and similar symbols into America’s public architecture is a reflection and recognition of our cultural heritage and history."

But there's a difference between religious iconography--symbolic representations, especially when woven into larger tableaux--and the actual text displayed in a way that commands authority.

The Texas monument (The 5th Circuit opinion being appealed does not pause to notice that the first two lines are in extra large type.)

Chemerinsky will even argue that since there is not one definitive version of the Ten Commandments, the government's sanction of one version could heighten tensions among different faith communities.

The State of Texas will make much of the fact that the monument had stood for 42 years--in Austin, of all places!--without challenge, using this supposed veneration as an argument for correctness. Maybe it took Judge Roy Moore's antics to get somebody to pay attention. Maybe it's a legitimate reaction to an unprecedented effort by the Christian right to rewrite American history.

The argument from the photos doesn't work. It's an interesting idea, but not even original. Many years ago, George Daly for the N.C. ACLU wrote an amazing brief in a flag desecration case. A hippie type had been stoped on the highway near Charlotte. He had an American flag pasted to the roof of his car. He got in trouble for messing with the flag.

Daly's brief was peppered with illustrations (black and white, cut and paste through the wonder of Xerography) of flags in various misuses, including (actually the only one I remember) Raquel Welch in a flag bathing suit. Unlike the writers of the Ten Commandments brief, Daly didn't say a word in his text about the pictures. He didn't have to. That was a powerful brief, and, as I recall, it carried the day.

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