Guest Post by Morbo
As expected, the Supreme Court handed down two decisions on Monday dealing with government-sponsored Ten Commandments displays.
It’s a mixed verdict. By a 5-4 vote, the court struck down a McCreary County, Ky., display that the majority said went too far in endorsing religion. But also by a 5-4 vote, the court upheld a Decalogue monument on the grounds of the Texas State Capitol, declaring it historic in nature and not overtly religious since other monuments are also displayed in the vicinity.
I don’t buy the court’s reasoning in the Texas case, but I was glad to see the justices rebuff Religious Right demands that the court jettison its longstanding tests for determining church-state violations. On balance, the day was a huge loss for the theocratic right.
For that we can thank, in part, the soon-to-be retired Sandra Day O’Connor, who has always a swing voter when it comes to church and state. I’ve never been a huge fan of O’Connor. She strikes me as a weak reed at best, and her thinking on church-state relations has been all over the map. However, she said some good stuff in her dissent to the Texas ruling. Here are a few choice lines:
“At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish.” […]
“Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”
Conversely, Justice Antonin Scalia said some stuff that scares the hell out of me.
In Scalia’s view, the government can endorse and promote monotheism and generic forms of religion, and if you don’t like it, too bad. Scalia opined that he sees nothing wrong with the government “favoring religion generally, honoring God through public prayer and acknowledgement, or, in a nonproselytizing manner, venerating the Ten Commandments.”
So now the government is supposed to get into the veneration business — but only in a “nonproselytizing” way? And this, remember, comes from a man considered to be the court’s leading intellectual conservative.
Scalia’s dissent to the Kentucky decision begins with a story about being in Italy on Sept. 11, 2001, and hearing an Italian government minister express dismay that public officials there do not appeal to God the way American leaders did that day. Interesting story. It may even be true. So what? How is it relevant to the case at hand? Scalia never tells us that. The gist of his argument is, “I like religion. Most Americans like religion. George Washington once said something nice about religion. Therefore, the government can promote religion.”
Clarence Thomas also continues to prove he’s a maniac. Thomas is so out there he now seems to believe that the Fourteenth Amendment was never ratified. Apparently, he doubts that portions of the Bill of Rights apply to the states, a process known as “incorporation.” The high court began to accept the incorporation doctrine in the 1920s and embraced it fully, at least as far as the religion clauses of the First Amendment go, in 1940. Thomas isn’t sure that was a good move. Under his theory, states could pass laws establishing official religions or restricting the practice of unpopular ones. The guy’s a loon.
Remember, both of these rulings were 5-4 decisions. Since then, we’ve learned that O’Connor is retiring. What’s more, Justice John Paul Stevens, who wrote a strong dissent in the Texas case supporting church-state separation and in the process offered a powerful corrective to the nonsense peddled by Scalia and Thomas, is 85 years old.