Legal Commentary

Via the absolutely indispensable Howard Friedman, I see this story out of Oklahoma.  It appears that a bill has now been signed by the governor (it had passed 83-2 in the OK House of Representatives) to erect a Ten Commandments monument at the state capitol (for those who may not be familiar with Professor Friedman's Religion Clause blog and who are interested in this area, his blog is a superb place for the latest).  The monument will be paid for by private funds, though it looks like those funds are coming from the family of the Oklahoma representative who introduced the bill (that doesn't change the fact that the funds are private -- it's just interesting).

The bill assumes a defensive and somewhat tentative posture, recognizing that it may well be deemed not to fall this side of the all-important chasm that divides Van Orden v. Perry and McCreary County v. ACLU.  It authorizes funds for its legal defense (should such be needed...not saying they will be...but, just sayin'...).  And it provides, oddly enough, that the monument "shall use the same words used on the monument" in Van Orden, as if it were the words of the monuments themselves, as opposed to the context in which they were displayed, that made all the constitutional difference between McCreary and Van Orden.  

Prognostication is not something I am very good at, and when it comes to reading the entrails of the protean beast that is Establishment Clause doctrine, even the Delphic Sibyl would have her hands full.  But one obvious difference between the monuments is that the Van Orden monument had been in existence for 40 years or so, while this one is brand new.  Should this difference make a difference?

It certainly made a difference to Justice Breyer, the swing vote in the 2005 cases.  The age of the Van Orden monument lent it a kind of wholesome aura: 

"[T]hose 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect to promote religion over nonreligion . . . . Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage."

One might discern two lines of argument in this statement.  The first is that insofar as the Court is attempting to ferret out the legislative purpose that moves a religious display, the passage of time makes discovering such a purpose less feasible, murkier.  There is both an evidentiary and an epistemological facet to this murkiness.  The evidentiary point is the usual one that as time passes, proof of purpose is more likely to be lost to history and irretrievable.  The epistemological point is that the passage of time renders it more difficult to pin down a single purpose because different people will come to know and think about the monument in widely diverse terms -- purpose may well become pluralized.  These points about the passage of time and purpose were picked up by Justice Souter in his McCreary opinion, where the Justice rejected both the Counties' claim that only the last iteration of the TC display should be examined to determine purpose and their analogy to McGowan v. Maryland: "[T]he world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence[.]"

I want to set these points about purpose aside, and to focus on the second possible argument about the passage of time.  One might take Justice Breyer to mean something more substantial and, I think, controversial -- that the passage of time all by itself grants to existing traditions and practices a presumption of validity and non-interference.  It is not a presumption that is irrebuttable -- it may be overcome given the right circumstances.  But custom and tradition is a point quite in favor of constitutionality. 

This point would be reminiscent of a kind of Burkean Minimalism, a la Cass Sunstein.  Just in virtue of the mellowing, neutralizing power of time and custom, a religious display may be transformed from unconstitutional to constitutional.  This is an entirely anti-Holmesian point, if one calls to mind Holmes's famous aphorism about the 'revoltingness' of prizing the past qua past.  Judge McConnell once thought, after the Glucksberg decision, that this was the direction in which substantive Due Process was headed (see, for example, his article, The Right to Die and the Jurisprudence of Tradition).  Lawrence v. Texas seems to have thrown a sizable monkey in that wrench.  Might it be a fruitful direction for Establishment Clause doctrine, at least in the context of religious displays?  Could the traditionalist argument from custom bring just a small bit of calm to the wildly unpredictable storm that lashes about the ship of Establishment Clause doctrine?  Even if it would not bring complete calm -- as it surely would not -- might it achieve some sort of a modus vivendi that couldn't be any less confounding than what we've got now?  The past may be a beacon for ships at sea. 

Even if the answer to these questions is yes, it will offer little comfort to the defenders of the Oklahoma display.