Legal Commentary

A few days ago, the U.S. Court of Appeals for the Tenth Circuit denied an en banc rehearing in a Ten Commandments case.  (A panel of that court had invalidated a courthouse-lawn display in Stigler, Oklahoma.  (HT:  Prof. Friedman).  Several judges filed interesting dissents from the denial of rehearing (available here).

I've been saying -- perhaps, given my own research interests, for selfish reasons -- that "church autonomy" questions, and not holiday displays, etc., are now the more important law-and-religion ones and should be the focus of religious-freedom scholars and lawyers.  Maybe I'm wrong.  Still, I remain very and increasingly skeptical of the idea that there's much useful work for judges to do in policing these kinds of displays for "establishments" of religion.  In my short contribution to a recent symposium on Kent Greenawalt's latest church-state book, I wrote:

[T]hese questions are hard, answering them requires balancing and trade-offs, there are many values at stake, and sometimes in tension, and so [perhaps] the best way to answer these questions ? with a few exceptions ? is through politics[.]  To say this is not, of course, to pretend that there is not a lot at stake, or that the right answers do not matter (just because they are find); it is simply to confess that, in this area, ?judicially manageable standards? are hard to come by and so, perhaps, we should admit a "permissible disparity between constitutional ideals and [judicially enforceable] implementing doctrine."

Noah Feldman seemed to be making a similar suggestion, in his chapter in the Balkin & Siegel volume, "The Constitution in 2020."  (The chapter is adapted from Noah's 2005 book, "Divided by God".)

The point . . . is not to deny that religious symbols may be marginalizing, because they may.  So indeed may other political symbols that the state may choose to adopt or express.  The point is to notice, rather, that the impossibility of choosing neutrally between religious and non-religious symbols is a reason to confer the choice on the democratic polity, rather than making the decision in the courts.