Monumental decisions

I predicted the results in the two Ten Commandments cases, McCrary v. ACLU, up from Kentucky; and Van Orden v. Perry, from Texas. (I didn't write it down, but I have a witness.) It wasn't rocket science. In the Kentucky case, county officials behaved the way Roy Moore did in Alabama only more so. After they put up framed Decalogues in their courthouses, after a lawsuit was filed in complaint, they put window-dressing around the displays to claim a secular purpose. Neither of the lower courts was fooled, so it was not a surprise (though a disappointment to many) how this one came out.

In the Texas case, it was easier see that the court would accept the argument that since the monument was just one of many dotting the lawn of the Capitol, it did not advance a particular religion. But though I predicted the outcome, I didn't say it was right.

Eric Muller's critique of Justice Breyer's concurrence in Van Orden makes a lot of sense. As he points out, for Breyer the determinative factor is that the monument has stood unchallenged for 40 years. That's it, that's what persuaded him. Clearly put there to stay, the monument has some kind of squatter's right. Breyer seems worried about the practical impact of declaring this one out of bounds:

To reach a contrary conclusion here, based upon the religious nature of the tablet's text, would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the nation. And it could thereby create the kind of divisiveness that the Establishment Clause seeks to avoid.

A jurisprudence of prudence? But as I've said before, it just might be that the hallowed stone marker had been left to rest in peace for 40 years because until lately, there was no real reason to fear the tyranny of the Christian right majority.

And again, though I predicted the outcome I did not imagine what a truly bad precedent Van Orden would set. Chief Justice Rhenquist, writing for the majority, has bought the whole revisionist historical argument. ("'There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.'") Justice Thomas' concurrence revives his argument (from Elk Grove v. Newdow last year) that the Establishment Clause was never intended to apply to the states in the first place. (This decision appears harder than it has to be, says he.)

So if you want to argue a case like this, you're in a bind: yes, there are plenty of breaches in the wall, plenty of things to complain about. (Don't get me started on "Team Jesus Christ.") But the real jurisprudence of prudence might be to not bring the cases at all, for fear of making the law even worse than it is, if that's possible, which it probably is.

POSTSCRIPT: Christian groups plan more monuments. The goal is 100 in a year.

UPDATE: Very interesting discussion of both cases at SCOTUSblog.
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