The Decalogorrhea

Van Orden v Perry and McCreary County v ACLU were among the more high-profile of the decisions announced this term, but the cases produce much more heat than light. Rehnquist wrote the majority in the Texas case and Souter in the Kentucky case, but Breyer's split votes (in favor of the Ten Commandments display in one and against it in the other) mean that his concurrence in the former is the most legally significant opinion in the cases (and that's not saying much.) I can't imagine anyone possibly deriving a legal rule from the two majority opinions.

Clearly, the Court is still engaged in a dialogue about the symbolic recognition of religion by the State. More accurately, this is a serial monologue, opinions delivered seriatim. Neither of the four-member blocs voting consistently is really listening to the other; for evidence of this, observe how often each justice in these cases cites their own previous discretionary opinions as authorities. With the only concurring opinion writer in the Kentucky case announcing her retirement I have a good guess who will soon be lecturing primarily in dissent and who in majority. A more conclusive word on establishment will issue soon, ironically enough, from a Bush.

In the meantime, I offer these brief summaries of the Ten Opinions:

1 - Thou shalt not proscribe Government acknowledgment of the Supreme Being if said acknowledgment is just sitting there, minding its own business, when an objecting Petitioner antagonistically walks by and takes offense. (Rehnquist)

2 - Thou shalt not prohibit the State from taking the "Traditional Positions" I've discovered with regard to God or the Ten Commandments, since those Traditional Positions are favorable to my own. (Scalia)

3 - Thou shalt not listen to the pointless Court opinions authored by many of the nation's most revered justices over decades of wrestling with the question of Establishment and Incorporation, but instead shalt listen to several of my concurrences and dissents over the last ten years or so, which clearly state the Correct position on both issues, such Correct position being one of which I enthusiastically approve. (Thomas)

4 - Remember all the Establishment tests devised before now, but don't use them in this case, because all I care about is the fact that this display was around for nearly two generations without causing any static, and I'd rather not end the term with two decisions forcing the removal of Ten Commandments displays. (Breyer)

5 - Honor the Founders' intention of neutrality, but don't pretend like they really recognized non-Christian faiths as worthy of respect just because it's not polite anymore to call people Semites and Mohammedans anymore. (Stevens)

6 - [As I have grown tired of this nonsense and am busy packing my office to head back to Arizona, I refer you to my other opinion below. Try and figure this out for yourselves for a change.] (O'Connor)

7 - Thou shalt not produce state-sponsored displays of religious texts, even in the company of other secular texts and displays, if the resulting exhibit is badly organized. (Souter)

8 - Thou shalt not endorse religion, then it gussy up with the Magna Carta and the lyrics to "God Bless the USA" and expect it to be OK. (Souter)

9 - Thou shalt not leave a paper trail when promoting State establishment of religion. (O'Connor)

10 - Thou shalt not prohibit states from recognizing a monotheistic Creator, since that position accommodates the stances taken every once in awhile by some of the Founders in certain official actions and the beliefs of the people (Christians, Jews and Muslims) you can't openly insult anymore in enlightened company. (Scalia)