Ten Commandments!

[D. Scarlatti]

Watch this space, 10 a.m. EST, 6/27/05.

Questions presented:

03-1500 Van Orden v. Perry

Decision below: 351 F.3d 173 (5th Cir. 2003)

03-1693 McCreary Cty. v. ACLU

Decision below: 354 F.3d 438 (6th Cir. 2003)

The latter case is somewhat more interesting since the Court is being asked to inter the Lemon Test once and for all.

[JoeP]

Originally Posted by D. Scarlatti

the Court is being asked to inter the Lemon Test once and for all.

inter
Lemon Test

[livius drusus]

Have mercy on the poor South African, Scarlatti. I mean, of course I know exactly what you're talking about and think you're a damn genius and shit like that, but Joe could really use an explanation.

[D. Scarlatti]

Yes, good point (apart from the genius bit).

The relevant bit of the First Amendment reads, "Congress shall make no law respecting an establishment of religion." One of the tests that the Supreme Court (and lower courts) uses to determine whether a particular government action violates the Establishment Clause is called the Lemon Test, after the case in which it was originally formulated, Lemon v. Kurtzman.

It has three "prongs":

1. The action must have a legitimate secular purpose;
2. The action must not have the primary effect of advancing or inhibiting religion;
3. The action must not result in an excessive entanglement of government and religion.

If the review of the government action results in its failing to pass scrutiny under any one of the three prongs, it's deemed a violation of the Establishment Clause. Although the courts don't use the Lemon Test in every Establishment Clause case, it's come under severe criticism from several of the current Justices, especially Justice Scalia, who once compared it to a late night ghoul rising from its grave occasionally to be stabbed at by the pencils of opinion writers, only to return, zombie-like, again and again.

So that's what I meant by being "interred" once and for all.

[D. Scarlatti]

The government lost the Kentucky case, 5-4. According to SCOTUSblog, Justice Souter said the display had a solely religious purpose (as opposed to secular), which doesn't sound like the Lemon Test has been killed off yet, since this is the case in which the Court was asked to do away with it. Scalia's dissent should be entertaining as usual.

[Sauron]

Ooooh, SC just announced that 10 Commandments displays are illegal.

5-4.

That's gonna drive the fundibots stark raving batshit. Can't wait to see them start saying, "Let's pray that God takes Rehnquist so we can change this "activist" court."

[D. Scarlatti]

Originally Posted by Sauron

Ooooh, SC just announced that 10 Commandments displays are illegal.

Not all of them. Reports so far indicate this ruling is extremely narrow.

[D. Scarlatti]

Justice Kennedy is among the dissenters in McCreary Cty. Kennedy, a Reagan appointee, has become the right's latest whipping boy in its battle for control of the judiciary, according to today's New York Times. This is not news really, since Tom DeLay excoriated Kennedy during the Terri Schiavo debacle for doing legal research online, among other things.

Several Republican Supreme Court appointees frequently write, or side with, what are commonly known as "liberal opinions." Kennedy, Souter, and Sandra Day O'Connor (whose abortion opinions are especially repellent to the right) are the reasons why the Bush administration is looking for the resumes of potential SC candidates that are so far to the right they won't pose a danger of lapsing into reasonableness after a few years on the Court.

[D. Scarlatti]

The Ten Commandments in the other case, involving their display at the Texas state capitol in Austin, have been ruled not to violate the Constitution: "That decision was widely splintered. Announcing the votes of the various Justices, [Chief Justice] Rehnquist quipped -- to widespread laughter -- that he did not know there were so many Justices on the Court."

[JoeP]

Originally Posted by JoeP

inter

Oh, that inter. I always thought it was spelled interr (but I was wrong), so I didn't recognise it.

[D. Scarlatti]

McCreary County. v. ACLU:

Justice Souter delivered the opinion of the Court.

Justice O'Connor, concurring.

Justice Scalia, ... dissenting.

Scalia's dissent begins with a personal anecdote, a hallmark of legal reasoning.

[D. Scarlatti]

Van Orden v. Perry

REHNQUIST, C. J., announced the judgment of the Court and delivered an opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., and THOMAS, J., filed concurring opinions. BREYER, J., filed an opinion concurring in the judgment. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined. O’CONNOR, J., filed a dissenting opinion. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined.

Ye gods.

[Crumb]

Damn, there's a lot of Js in there...

[D. Scarlatti]

Yeah, there's no majority opinion in the Van Orden/Texas case. Breyer's concurrence, in which he agrees with the outcome but not Rehnquist's rationale, is what makes it a win for the 10 Commandments crowd.

I haven't read any of the opinions in their entirety yet, but I can say that Stevens' dissent will warm the cockles of the separationist heart.

[Stephen Maturin]

You heard it here first!

Okay, so I actually fucked up part of that prediction. The Court actually managed to produce a majority opinion in the Kentucky case.

I haven't read any of the opinions in full either, and I'm not looking forward to it. Perhaps ignoring all the opinions except Stevens' is best course with respect to sanity preservation.

[Ari]

Some fundies are probably pretty pissed that this has set back their plans for theocracy.
This has helped re-instill a tiny bit of faith in the supreme court.

[D. Scarlatti]

Originally Posted by Stephen Maturin

Perhaps ignoring all the opinions except Stevens' is best course with respect to sanity preservation.

"Even if the [Establishment] Clause is incorporated, or if the Free Exercise Clause limits the power of States to establish religions ... " Van Orden v. Perry, Thomas, J., concurring [emph. added].

[/taunt Maturin sanity]

[godfry n. glad]

I'm still confused.

What is the outcome? Can someone please synopsize for the legalese disabled?

[Dingfod]

My completely layman's take: Older, more secular (i.e. donated by non-religious fraternal organizations 40-50 years ago) displays of The 10 Suggestions are basically grandfathered in, new ones, ones clearly not secular in intent, not so secure.

[D. Scarlatti]

Yes, you need a reindeer in the creche, so to speak.

[Dingfod]

Or three wise elves.

[godfry n. glad]

You heard about the Wise Men in firefighter outfits didn't you?

Fella pulls into a smallish town in Arkansas, where a nativity scene is presented in the center of town. Looking at the usual, he was surprised to see three men dressed in firefighter's gear. When he asked, he was told they were the three Magi. When he inquired further as to the gear, he was told it was scriptural..."They came from a far."

Thanks, warrant.

[viscousmemories]

Originally Posted by warrenly

My completely layman's take: Older, more secular (i.e. donated by non-religious fraternal organizations 40-50 years ago) displays of The 10 Suggestions are basically grandfathered in, new ones, ones clearly not secular in intent, not so secure.

I seriously hope you got that from reading the opinions, 'cause if that's explained somewhere in this thread I've gone completely blind.

[Dingfod]

That and listening to umpteen interpretations of the rulings on NPR and talk radio this afternoon.

As for the 40-50 year old displays: the one in question in Austin was donated by the Fraternal Order of Eagles, which is basically a social drinking club so far as I can tell. FOE donated thousands of them during the 1950s and 1960s, many of them subjects of Separation lawsuits.

[godfry n. glad]

Originally Posted by viscousmemories

I seriously hope you got that from reading the opinions, 'cause if that's explained somewhere in this thread I've gone completely blind.

Well... I tried reading the opinions. Warrenly's synopsis clears my confusion, because I was reading what I guess was the opinion on the Kentucky cases (I think), and that seemed pretty separationist. Then I hear the legal beagles here bemoaning a decision...that's why I was confused.

It sounds like "straddle the fence" time to me. Like tradition stays, but religious purpose is out. Basically, what it will take in the future is some civic organization raising the funds and gifting it to some public building...and nobody else complains. Is that accurate? Or, are non-religious civic organizations even prevented from doing this? It seems if one had a zealous enough well-heeled activist member in any civic organization, it could potentially be accomplished.

Eagles. Yeah... Drinking clubs with do-gooder intentions. Most have some civic purpose to which they attend. A lot like the Elks, the Moose, the Knights of Pythia...and on.