Supreme Court decisions on 10 Commandments

I know I'm "late" in the world of internet punditry, but here are my thoughts on the Supreme Court decisions on the 10 Commandments known officially as McCreary County, Kentucky v. ACLU (2005): and Van Orden v. Perry (2005).

The majority decision by Souter in McCreary is spot on in rejecting the 10 Commandments display by over zealous religious folks in Kentucky who attempted to establish the Judeo-Christian-Muslim God as an "official" religion. Yale Constitutional law professor, Jack Balkin, at Balkinization, slams Scalia for his usual "majoritarian religions win" dissent. What is not being adequately picked up in some quarters, however, is that, in Van Orden, the Supreme Court also upheld a 10 Commandments display in Texas where the Texas government officials exhibited the 10 Commandments as part of a panoply of secular and non-secular sources of American law.

I noted something quite funny, too: Scalia, at one point, says 97% of Americans are either Christian, Jewish, or Muslim...so there! Well, that's what he is really saying, after all. In other words, if the majority want to "establish" an official religion, by God (pun intended), then let them do it! O'Connor's concurring opinion contained a pithy, but great retort to Scalia's argument (Scalia's argument might be called: "My God's got more supporters than your God or you Deist and atheistic bastards!").

Said O'Connor: "It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment" clause against "establishing" an official religion.

And for those who are Constitution-challenged, a historical note: The 14th Amendment, passed after the Civil War, gave Americans "national citizenship" over States for the first time. The effect of this power given to individual Americans over State and local governments with regard to most of the Bill of Rights of the national Constitution means that most States and localities can no longer "establish" a religion, either. As we know, the First Amendment merely states "Congress" shall make no law establishing a religion.

And, by the way, what was Scalia's response to O'Connor? Poor Big Tony meekly argued that O'Connor joined, but had not written, an opinion that had cast doubt on her head-counting point--even though Scalia has to admit that most jurisprudence from the Supreme Court supports the "no head count" argument. This leads to the most pathetic aspect of Scalia's diatribe dissent--does he write any other?--which is his history of religion in the early Republic. To read Scalia, you'd think the Founders were good Christian boys who graduated from Jerry Falwell's ironically named Liberty University. Scalia's given us his history lesson in an earlier decision, whereupon he had received a smack-down from--you guessed it, Justice Souter. The case was Lee v. Weisman 505 US 577 (1992) . In Lee, Souter's concurring opinion revealed much in the way of our Founders' non-religious intent, but how they sometimes, for short-term political purposes, used religion to score political points against opponents. Some things never change, do they?

What is nice about the two 10 Commandment decisions is that, by quoting the highly religious versions of the 10 Commandments used in both Kentucky and Texas, the difference between the actual settings, and showing how cynical the Kentucky County officials were compared to the Texas county whose 10 Commandments exhibit was upheld, the Supreme Court struck a blow for moderation in this contentious area of constitutional law. The gist of today's decisions is that we cannot nor should not root out the 10 Commandments from our public life. We should, however, remain on guard against sectarian zealots who want to deny what the United States officially told the world back in 1797, i.e."...(T)he Government of the United States of America is not, in any sense, founded on the Christian religion..." (Article 11 of the Treaty of Tripoli). (Emphasis added)

Finally, we may even begin to remember that our Constitution's Founders thought it important enough to say in the Constitution's text that there shouldn't be "religious test" for office. That clause within the Constitution should give dear Justice Scalia pause in his incomplete, semi-historical/semi-hysterical "majoritarian" argument about religion in the early days of America--especially if he was, truly, a more objective-minded texturalist, as he claims. Scalia, however, is nothing but the right-wing Republicans' version of William O. Douglas: results-oriented and politically motivated. (For a devastating attack on Douglas from so-called "liberal" Ronald Dworkin, see Dworkin's 1981 essay "Dissent on Douglas"--which the New York Review should provide for free, not subscription).

UPDATE: Later this week, a few comments on the Kelo v. New London (eminent domain) decision. While there's been some great commentary on the web, there are a couple things I found interesting in both the minority and majority opinions...

(Edited--My original post last night was wrong in not mentioning the separate Supreme Court decision on the Texas exhibit and was wrong in saying Souter had upheld the Texas exhibit (very wrong!). The reason the Texas exhibit was upheld was due to Breyer, rightfully in my view, upholding the overall effect of the exhibit as constitutionally permissible. Plus, the usual grammar and editing has now been completed--MJF.)