Sunday, April 13, 2014


In Oklahoma City, there is a brewing controversy surrounding a display of the Ten Commandments in the Capitol city of that state.

The ACLU has found an individual willing to file a complaint, and the lawsuit,  Prescott v. Oklahoma Capitol Preservation Commission, is ongoing. There are divergent groups demanding equal time including a group from New York, The Temple of Satan, who are demanding a statue of  Baphomet, a goat-headed pagan idol sitting on a 7-foot-tall throne inscribed with an inverted pentagram.

What will the courts decide?

That is not easy to answer because the jurisprudence on the Establishment Clause of the First Amendment, "Congress shall make no law respecting an establishment of religion", is currently in disarray. Probably no area better epitomizes that reality than this specific issue of religious imagery.

Back in 2005, the Court issued an opinion on this specific issue of displaying the Ten Commandments at the Texas state capitol in Van Orden V Perry. They ruled that it was constitutional. They also issued an opinion in McCreary County v ACLU of Kentucky that a display of the Ten Commandments in a Kentucky County was unconstitutional. 5-4 with the swing vote in both being Justice Breyer.

They issued both opinions on the SAME DAY.

The irony was, of course, not lost on Breyer. His judicial philosophy is one of looking for consequences and also the purposes of a law. Original meaning is not definitive for him. He attempted to explain his inconsistency by the purpose (as he saw it) for each.

Originally, because the Bill of Rights did not apply to the states prior to the modern interpretation of the 14th Amendment (mid-twentieth century), the states were free to display religious symbols, even free to literally establish a state church (which some did).

So if a state wanted to display the Ten Commandments or even a statue of Satan, they were free to do so. There was no compulsion to display various religious symbols "equally". If the people of a state wanted a specific display --- then so be it.

About 75 years ago, the Supreme Court drew up the deep anchor of the original understanding and have become adrift. They have attempted to "set their sails" using various legal constructs (such as the appropriately named Lemon test) but they keep changing the sails. Lower Courts are confused and understandably so.

When you embark on a method of interpretation that is based on the fluid "purpose" and "consequences", you effectively remove the "We the People" from the Constitution and the government "of the people, by the people, for the people" and replace it with a government "of the few, by the few" --- the Justices themselves. You diminish the republican form of government and replace it with an oligarchy of Ivy League "superiors" who tell us what the meaning is: today, anyway. Pay attention. It could change tomorrow. How will this case turn out?

Which way is the wind blowing?