Decalogue Hokey-Pokey

Believe it or not, there is one virtue to the Supreme Court's contemporary flights of whimsy: you don't need to be a legal scholar to analyze them. The countervailing drawback is that you do need to be a psychiatrist.

The rest of us can indulge in amateur comedianism.

Yes, this post is over a week late. But the two Ten Commandments decisions the SCOTUS handed down last week were so wearyingly tiresome that there always seemed to be more important things to do, like napping or clipping hangnails off of my toes.

In Van Orden v. Perry the 5-4 majority ruled constitutional a TC display on the grounds of the Texas State Capitol, whereas in McCreary County v. ACLU of Kentucky framed copies inside two Kentucky courthouses were ruled unconstitutional by a near-identical 5-4 margin.

I say near identical because eight of the Justices voted the same way on both cases; only Justice Steven Breyer split. Thankfully, because of that almost-consistency whose absence Justice Scalia delightfully ripped in his McCreary dissent (see below), I can dispense with any opinion excerpts save Breyer's (and, you know, Scalia's).

On second thought, it's late, and I really don't care to try to straighten out the double-helix of Breyer's crazy-quilt reasoning. Let's just let Brother Meringoff summarize:

The reasonable man test (what a reasonable person would do in a particular situation) is a staple of the law. So too, the objective observer standard, invoked with some skill by Justice Souter (though deconstructed in Justice Scalia's dissent) in the Kentucky Ten Commandments case. But Justice Breyer rests everything on the jackass test - the government can display the Ten Commandments on public property in your town unless one jackass decides, within an unspecified time period, to get sufficiently worked up about it. I suspect that this is all the invitation the jackasses of America will need to get worked up en masse.

Funny, I thought they pretty much already were.

Oh, yes, and there was something about the ages of the respective displays, which Ed Whelan brought out:

The particular factor that Breyer finds “determinative” in this case—but don’t jump to the foolish conclusion that anything similar might be determinative in any other case—is that “40 years passed in which the presence of this monument, legally speaking, went unchallenged.” By contrast, the Kentucky displays had a “short (and stormy) history.” And “a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.”

Guess the Texas decalogue just got lucky.

The layman with his/her pocket-copy of the Constitution will take one look at Breyer's (or Stevens', or Souters', or Ginsberg's, or Kennedy's) opinions and not unreasonably wonder what in the blue hell any of that gobbledygook has to do with "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Since Congress had nothing whatsoever to do with the erecting of either Ten Commandments display, there's nothing from the text (heh) forbidding any of them.

At least that's what Chief Justice Rehnquist seemed to be saying in Van Orden:

Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause.

Okay, that's three Justices. But given a few minutes, I'd wager I could come up with as hopelessly convoluted and self-authenticating a piece of justification as Breyer did.

I doubt, though, I could beat Justice Scalia's eloquence:

1. The history of this country demonstrates that the majority’s proposition that the government cannot favor religion over irreligion is plainly false.

2. What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.

3. If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. Historical practices . . . demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion.

Or John Podhoretz' delicious derision:

Why didn't the Supremes just say you could display the 10 Cs on Monday, Wednesday, and alternate Fridays, but not on Tuesdays and Thursdays? Or that they could be viewed inside government buildings, but only on the walls of bathrooms and in janitors' closets? Has anybody ever advanced this radical opinion - that the five justices in question may be intelligent and thoughtful people individually, but that together they form one blithering idiot?

Or the comprehensively fanged wit of Mark Steyn:

Don't worry: All nine judges aren't that wacky, just the deciding vote in both 5-4 decisions. That belonged to Stephen Breyer, who nixed the Ten Commandments in Kentucky but gave 'em two thumbs up in Texas. His grounds for doing so were that the Texas Commandments had been there 40 years and were thus part of ''a broader moral and historical message reflective of a cultural heritage,'' whereas the Kentucky Commandments were newer and "a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive.''

Really? Not as "certainly likely" to prove divisive as grandfathering the display of some Commandments but not others, so that the only way to be sure yours is constitutional is to sue over it. For one thing, Justice Breyer didn't identify the year in which he believes the Commandments ceased to be constitutional. Nineteen-sixty-eight? Nineteen-seventy-three? Maybe a sliding scale? If you put up the Commandments before 1965, you can have all Ten; between 1966 and 1979, you can have six firm Commandments plus a couple of strong recommendations; from 1980 to 1991, it's two Commandments and half a dozen lifestyle tips?

To be sure, the Supreme Court took other factors than the year of manufacture into consideration - whether the display was inside or out, whether it was surrounded by a full supporting cast of religious artifacts or secular knick-knacks, etc. But it's hard to discern any principles here, at least when compared to their one-size-fits-all abortion absolutism. To the best of my knowledge, Justice Breyer has never claimed you can have a first-trimester abortion in the parking lot but for the full partial-birth you have to be indoors.

The analogy that came to my mind was that of the father who lets his kids get a dog, but then won't let it into the house but makes it stay, tied up, in the back yard.

I guess 40-year-old dogs don't yap very much - unlike, regrettably, a High Court peopled by Justices who don't see God in the Declaration of Independence, apparently because to recognize Him there would somehow ignite a second Thirty Years' War.

It'd be funny - hilarious even - if not for the timelessness of Abraham Lincoln's observation a century and a half ago:

If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers.

[HT: GOP Bloggers/CQ]