Legal Commentary

The Supreme Court handed it down today.  Summum lost.  And it was unanimous -- as one somewhat obnoxious but yet ruggedly attractive commentator predicted.  I've read through it once now.  The majority opinion strikes me as quite sensible.  It stays well within existing doctrine, and avoids unnecessary and fractious issues (which I actually go into in the above post).  One striking thing: The majority opinion completely ignores the religious dimensions of this case.  Forms of the word "religion" appear only four times in the majority opinion -- twice to describe Summum as a religious organization (see p. 2 & p. 2 n.1), once in referring to John Lennon's musical lyrics in "Imagine" (see p. 12 -- who says Justice Alito can't have fun?), and once in referring to the common museum with religious exhibits hypo (p. 13 n.5).  The majority puts aside the Establishment Clause issues, and treats this Ten Commandments display as it would any secular one. 

The concurring opinions pick up the issue a bit.  Justice Scalia writes an opinion (joined by Thomas, but interestingly not by Alito, Roberts, Kennedy or Breyer) opining that this display clearly is safe harbored by Van Orden.  And Justice Souter addresses the Establishment Clause as well.  His opinion is probably the one to really think about.  He, quite rightly in my view, recognizes the potential for disaster when the "government speech" doctrine begins to apply to government religious speech.  Here's his provocative thought:

The interaction between the "government speech doctrine" and Establishment Clause principles has not, however, begun to be worked out.  The case shows that it may not be easy to work out.

This is something too that I've written about before, and plan on working on later.  And certainly I can see this paragraph setting other pens in motion as well.