Monday, July 04, 2005

The Religion Decisions

The lonely libertarian wanted to reserve comments on the religion decisions, McCreary v. ACLU and Van Orden v. Perry, until after he had the chance to read them. Far too often when it comes to issues of Constitutional law, the media is inundated with the voices of those who haven't even read the opinions of the cases they are weighing in on.

But now that I've had the chance to read both of the opinions, I'd like to add my two cents. In a legal sense, the distinction between McCreary and Van Orden is a joke. Basically, the guidelines states and municipalities have to go on is that Ten Commandment monuments are okay if they were erected in the days before the ACLU cared about such matters. But count on very strict judicial scrutiny of your motives if you plan on putting up any new religiously themed monuments. The lonely libertarian isn't quite sure where in the Constitution it says any of this, but maybe it's one of those oft ignored amendments or articles he's never read all that thoroughly. Certainly it's not in the 1st Amendment.

As far as practical applicability goes, at least Justice Breyer makes up for his lack of legal sense with a bit of common sense. It's thanks to his one vote, and his appeal to rationality, that all the monuments around the country of the sort found in Van Orten don't all have to be demolished as Establishment Clause violations.

The lonely libertarian finds Justice O'Connor's concurrence in McCreary particularly disturbing:

When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual's decision about whether and how to worship. In the marketplace of ideas, the government has vast resources and special status. Government religious expression therefore risks crowding out private observance and distorting the natural interplay between competing beliefs.

Justice Thomas addresses the polar opposite of this viewpoint in his Van Orden concurrence:

In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.

By no means am I an expert on the Establishment Clause, but the disconnect between these two positions is staggering. On one hand, O'Connor would have the courts worry about every instance where religion could be associated with the government. And on the other hand, Thomas would limit judicial concern only to those situations involving legal compulsion. Justice Thomas's point is well taken. Is the issue in these Ten Commandment cases really an issue in which the individuals rights over when and how to worship are being infringed upon, or is the issue one of the individual being coerced by the government?

Keep in mind, the purpose of the Bill of Rights was to set limits on government action in order to better preserve the rights of individuals. Obviously, in any Establishment Clause case we're dealing with government action, but the question must arise as to what just what individual rights are being violated. Are any rights actually being violated, or are these Ten Commandment cases merely incidents of individuals taking offense to certain government actions? And is it possible for a religiously based to display to even violate an individual's rights? As Justice Thomas noted, there is a major difference between a monument on one hand, and the coercive nature of forced bible studies for example, or even the mandatory posting of the commandments in public schools on the other hand.

The lonely libertarian just finds O'Connor's position difficult to put any faith in. Why is it so troublesome when the government associates a particular set of religious beliefs with government, but not troubling at all when the government associates a particular set of political beliefs with the government, say for instance drug laws. Personally, I find the government's anti-drug propaganda to be much more manipulative than a display of the Ten Commandments.

The whole concept of endorsement becomes increasingly silly when one thinks of the vast multitude of non-religious viewpoints the government can endorse. Somehow it's okay for the government to proselytize about drugs, but it's wrong for the government to recognize the Ten Commandments? It just doesn't make a lot of logical sense.

The most damning evidence against the Establishment Clause jurisprudence as it exists today, is the numerous exceptions made for state sanctioned legislative prayers and uses of the word God. Regardless of motive, a government sanctioned prayer to God certainly seems to entangle religion and government in ways that a religious monument never could.

The lonely libertarian supposes that all in all, these decisions could have been much more far reaching and much more drastic. If not for Justice Breyer's very practical Van Orten concurrence, the states and municipalities may have had quite a construction bill to foot.


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