Take two Tablets and call me in the morning
The United States Supreme Court heard arguments today over the constitutionality of including the Ten Commandments in "Foundations of Law" displays in two Kentucky courthouses, and a Decalogue monument on the lawn of a Texas courthouse. Initial press reports have been somewhat more encouraging than my initial take on the matter when the Court granted certiorari in these cases, but only slightly. Justice Kennedy remains an unknown quantity, and as noted by Mark Levin on The Corner, his rulings have become more and more activist as his tenure on the Court increases. Nevertheless, these comments are simply common sense, and considering the source, refreshing: "'If an atheist walks by, he can avert his eyes,' Kennedy said. Saying the government can't accommodate religion is 'hypocritical and it's asking religious people to surrender their beliefs,' he said."
Without reviewing oral argument transcripts, it is dificult to gauge the tenor of the proceedings. But the press reports appear to indicate that Justice O'Connor may be the swing vote, and she apparently felt some trepidation regarding the Kentucky courthouse displays that she did not exhibit toward the Texas monument, which leads to an interesting dilemma -- the Court could attempt to be Solomonic (no pun intended) by allowing the Texas monument (which displays only the Commandments) to remain because of the "park-like" nature of its surroundings, but strike down the Kentucky displays, in which the Decalogue is just one of approximately ten documents reflecting the development of Western, and American, law. This seems like a silly result, but I would not be surprised if O'Connor advocated it.
Finally, two comments included in the above-linked press accounts merit discussion. Erwin Chemerinsky, a Duke University law professor arguing against the Texas monument, stated that "The Ten Commandments is enormously divisive right now." So is the issue of abortion, whether in toto or partial-birth, yet that has not stopped the Court from weighing in on the side of preserving that "constitutional right" time and again. In fact, abortion is much more divisive than the Decalogue, as surveys show an overwhelming majority of Americans support the public display of the Ten Commandments. An AP poll in February showed that 76% of Americans approve of such displays.
This point was driven home by Justice Scalia's references to the fact that the Commandments are "a symbol that the government derives its authority from God. It says our laws are derived from God. And that's what the vast majority of the American people believe." It's what the Founders believed, as well. Jefferson's words in the Declaration of Independence still resonate: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."
The second comment is a "man-on-the-street" comment that has appeared in news articles since before the arguments took place. "'I don't think government should be in the business of morality,' said David Condo, 40, of Beltsville, Md." Absent further context, this quote is nonsense. The entire criminal law is based, in part, on the fact that it is immoral to do harm to another human being's person or property, or to society at large. This is why we have laws against murder, rape, theft, and a host of other social evils. Moral judgments also underlie a good portion of the civil law as well. Divorcing government from "the business of morality" is the first step to a decadent and decaying society.
Unfortunately, Justice Kennedy gave this view some credence in the Lawrence v. Texas decision, where, in striking down Texas' sodomy law as unconstitutional, he stated that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." Kennedy gave those who want government out of the "business of morality" a foot in the door. Let's hope O'Connor doesn't remove the door from its hinges.
Without reviewing oral argument transcripts, it is dificult to gauge the tenor of the proceedings. But the press reports appear to indicate that Justice O'Connor may be the swing vote, and she apparently felt some trepidation regarding the Kentucky courthouse displays that she did not exhibit toward the Texas monument, which leads to an interesting dilemma -- the Court could attempt to be Solomonic (no pun intended) by allowing the Texas monument (which displays only the Commandments) to remain because of the "park-like" nature of its surroundings, but strike down the Kentucky displays, in which the Decalogue is just one of approximately ten documents reflecting the development of Western, and American, law. This seems like a silly result, but I would not be surprised if O'Connor advocated it.
Finally, two comments included in the above-linked press accounts merit discussion. Erwin Chemerinsky, a Duke University law professor arguing against the Texas monument, stated that "The Ten Commandments is enormously divisive right now." So is the issue of abortion, whether in toto or partial-birth, yet that has not stopped the Court from weighing in on the side of preserving that "constitutional right" time and again. In fact, abortion is much more divisive than the Decalogue, as surveys show an overwhelming majority of Americans support the public display of the Ten Commandments. An AP poll in February showed that 76% of Americans approve of such displays.
This point was driven home by Justice Scalia's references to the fact that the Commandments are "a symbol that the government derives its authority from God. It says our laws are derived from God. And that's what the vast majority of the American people believe." It's what the Founders believed, as well. Jefferson's words in the Declaration of Independence still resonate: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."
The second comment is a "man-on-the-street" comment that has appeared in news articles since before the arguments took place. "'I don't think government should be in the business of morality,' said David Condo, 40, of Beltsville, Md." Absent further context, this quote is nonsense. The entire criminal law is based, in part, on the fact that it is immoral to do harm to another human being's person or property, or to society at large. This is why we have laws against murder, rape, theft, and a host of other social evils. Moral judgments also underlie a good portion of the civil law as well. Divorcing government from "the business of morality" is the first step to a decadent and decaying society.
Unfortunately, Justice Kennedy gave this view some credence in the Lawrence v. Texas decision, where, in striking down Texas' sodomy law as unconstitutional, he stated that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." Kennedy gave those who want government out of the "business of morality" a foot in the door. Let's hope O'Connor doesn't remove the door from its hinges.
posted by Hal | 2:21 PM
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