Justice Souter’s Say-So
In the first of the Supreme Court’s decisions regarding the civic display of the Ten Commandments, McCreary County v. ACLU, five Justices held that a courthouse display of the Ten Commandments along with eight other documents (including the Bill of Rights, Declaration of Independence, and Star Spangled Banner) that “played a significant role in the foundation of our system of law and government” violated the Establishment Clause. See Justice Scalia’s dissent, pages 20-21.
Justice Souter’s opinion is unpersuasive. Relying on a Court-driven precedent of religious neutrality, Souter dismisses the religious historical underpinnings of our Nation’s laws (including the Ten Commandments) as a contradictory bother to the Court’s coddling concern for members of minority religions and atheists. For example, Souter writes the following:
[T]he Commandments have had influence on civil or secular law; a major text of a majority religion is bound to be felt. See Justice Souter’s opinion, page 21.
Justice Souter, do think that the Framers would have have written the Constitution so that it constitutionally prohibited a “major text” of the “majority religion” from being displayed in any public setting, let alone a courthouse? The thought is imbecilic at best.
Justice Souter also creates his own National history by claiming that the Fourteenth Amendment is the most “significant structural provision” since the Founding. Why? Not because the Amendment freed slaves. But, because the judical activists on the Court have created a doctrine called substantive due process (more like substantive B.S.) whereby the Court has found the right to privacy to rule that abortion was constitutional (Roe v. Wade) and that States could not prevent gays from sodomizing themselves (Lawrence v. Texas).
Ultimately, it is the Court’s precedent of neutrality “government may not favor one religion over another, religion over irreligion” that trumphs our Nation’s history as a religious and Christian nation:
A record of inconsistent historical practice is too weak a lever to upset decades of precedent adhering to the neutrality principle. See Justice Souter’s opinion, page 31 footnote 25.
Thus, with one broad judical brushstroke, Justice Souter and his cohort of four rely on their own policy preference of neutrality (which is not what Establishment means) to remove the Ten Commandments from a courthouse.
Justice Scalia, in his dissent, effortlessly but relentlessly picks apart Souter’s opinion, calling his logic “a thoroughly discredited say-so.” Scalia discusses the history of our Nation’s acknowledgment of God in statute, Presidential proclaimations, and prayers (judicial and legislative). Rightfully so, Scalia zeroes in the meaning of the Establishment Clause:
Historical practices . . . demonstrate that there is a difference between the acknowledgment of a single Creator and the establishment of a religion. See Justice Scalia’s dissent, page 10 (emphasis mine).
Among many examples of historical acknowledgment that do not establish a religion are the frequent displays of the Ten Commandments woven through the Supreme Court’s courtroom, doors, and gates. See Justice Scalia’s dissent, page 23. Why doesn’t Souter quiver that each and every atheist that comes to the Supreme Court must walk by such rampant religiousity?
Scalia solves the riddle of Souter’s discombobulated reasoning:
What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way now that–thumbs up or thumbs down–as their personal preferences dictate. [McCreary] forthrightly (or actually, sometimes less forthrightly) admits that it does not rest upon consistently applied principle. See Justice Scalia’s opinion, page 7.
McCreary is about five Justices’ policy preferences overriding a locality’s decision to display the Ten Commandments in a public forum. It is not about precedent or the rule of law. McCreary is yet another manifestation of the irrational doctrine of separation of church and state that has replaced the First Amendment’s prohibition of religious establishments with a preference of religious exclusion from public places and discourse. Sad indeed.