Noticing a theme here? Yep, it's all Establishment Clause, all the time for me today.
Anyway, I'm reading Van Orden v. Perry, in which the Court upholds the display of the Ten Commandments on the Texas capital grounds in Austin, where it is one of twenty-one monuments described as reflecting Texas' identity. The majority contends that such a display does not constitute an endorsement of religion, and to illustrate that point they mention the frieze around the walls of the Supreme Court. The frieze displays various lawmakers throughout the ages, one of whom is Moses, holding a partial copy of the Ten Commandments. The Court argues that, since this display is acceptable, the Texas display must be as well. But there's a huge difference.
The Court's frieze features the following figures: Menes, the first Pharaoh; Hammurabi, king of Babylon; Moses; Solomon, another biblical king; Lycurgus, a legendary Spartan ruler; Solon, an Athenian statesman; Draco, an Athenian legislator; Confucius, the Chinese philosopher; Augustus, the first Roman Emperor; Justinian, a great Byzantine emperor; Muhammad (controversially!), the prophet of Islam; Charlemagne, the medieval French king; King John of England, signer of the Magna Carta; Louis IX, another King of France; Hugo Grotius, a Dutch legal scholar; Sir William Blackstone, the preeminent scholar on English law during the Founding; Chief Justice John Marshall; and the Emperor Napoleon. Clearly there is no claim that Confucian philosophy is a prominent source of American law, and, uh, if you claim that the laws of Islam have even the faintest relation to American law the Tea Party will literally bite your head off. This frieze, then, is not claiming that the figures depicted have any particular relation to the American government, just that they are great figures from the history of law, real or mythical. The frieze is just a celebration of law by depicting great lawgivers. Nothing to do with religion, except that many great lawgivers, real or mythical, were also religious figures of prominence.
A monument of the Ten Commandments as one of the things that defines Texan identity is completely different. Here the claim is emphatically that the Ten Commandments are a particularly important source of American and Texan law, despite the fact that only three of ten are law in America or Texas, and those three, "don't kill," "don't thieve," and "don't perjure," are probably the three most obvious criminal laws possible! The other seven contain a prohibition on coveting, which being a state of mind cannot be legislated; a prohibition on adultery, which I don't believe any American state continues to enforce; and five commandments relating specifically to relations with god. The latter are clearly not part of American law, nor can be under the Establishment Clause. Claiming, then, that the Ten Commandments are not just a great moment in the history/mythology of law but also a building-block of American law is claiming that American law is in some sense religious law. It is not. The Court has trouble recognizing this, repeatedly mentioning that "our institutions presuppose a supreme being." No they don't. That's just a load of bull. The American government is a secular one, believing in nothing save democracy, liberty, and equality. Any contention to the contrary is an establishment of religion. The Court's frieze is, simply put, completely different.
Oh, and the Court refers to the Commandments as "simply having religious content or promoting a message consistent with religion." Nuh-uh. Those first five commandments are inconsistent with agnosticism. You cannot arrive at the content of the left-hand (right-hand? Does the language the tablets were in run right-to-left, and if so, does that matter here?) tablet if you are not a follower of the Abrahamic religions.
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ReplyDeleteAn even simpler argument is that the Supreme Court's frieze is of no constitutional significance whatsoever. It is not a source of law, it is a piece of architecture. There is literally nothing you can carve into the granite walls of the Supreme Court building that would allow an individual, a state or the federal government to do ANYTHING prohibited to it by the Constitution. There is no reason why the Supreme Court may draw inference on a constitutional matter from it's own frieze and not, say, the featured display in MoMA. It is irrelevant, it is irrelevant, it is irrelevant. This is some pretty weak sauce here. If anything, the Court has put forward more of an argument for the unconstitutionality of it's own frieze than the permissibility of the Texas display.
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Oh, you know, it's the usual lame Scalia argument "we do X, and everyone knows X is okay, therefore similar thing Y must also be okay." I was just pointing out that there is a genuine, relevant dissimilarity, though of course the logic is pretty massively flawed as well. If anything I'm giving an argument for why the Court's display is acceptable, given that the Texas one is clearly not.
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