Venom and Bile

[WTMHouston]

The opinions in the Kentucky case clearly illuminate the differences of opinion concerning the history and scope of the First Amendment's establishment and free exercise clauses. In the end, the Kentucky case really came down to the majority's view (as well as the view of three of four of the prior judges who reviewed it) that the purpose of the display in that case was not secular or historical, but rather that the purpose was to establish a religious view. Justice O'Connor's concurring opinion could easily be viewed as the most honest of all of the opinions. She, unlike most of the other judges on the court, would draw a bright line that would prohibit all religious displays in almost all circumstances. Most of the other members of the court -- on both sides -- seem to have a moving line dependent on the nature of the case. This moving line, of course, sometimes produces some results that appear inconsistent -- at least in the way they are reported in the press.

The Kentucky opinion can be found at:

http://a257.g.akamaitech.net/7/257/2422/27jun20051200/www.supremecourtus.gov/opinions/04pdf/03-1693....

The Texas opinion can be found at:

http://a257.g.akamaitech.net/7/257/2422/27jun20051200/www.supremecourtus.gov/opinions/04pdf/03-1500....

Beware, they are both very long and sometimes tedious reads. Ironically, in them, like in the Bible, one can find nuggests to support almost any proposition on these issues than one is inclined towards. But, since most of these views -- on both sides -- are largely based on opinions and not fact, there will always be disagreement.

The flip-flop vote between the two cases is Breyer. His concurrence in the Texas case, for which he was the fifth vote allowing the monument to remain, highlights the nature of the moving line. Based on the vastly different facts of the two cases, and about the only common fact was the fact that each had some version of the 10 Commandments, he reached different conclusions.

Interestingly, from a legal standpoint, Kennedy disassociated himself from Scalia's attack on Souter in the Kentucky case. I suspect that Kennedy viewed it as too much of a personal attack -- and some of the text of Scalia's opinion could easily be interpreted that way. Scalia has little tolerance for those with whom he disagrees and for those he views as intellectually inferior to him. But, I digress.

On a personal note, I believe each side of the argument to be partially correct and partially incorrect. I probably most closely associate with the views expressed by O'Connor in her concurrence in the Kentucky case, though I disagree with some of them as well. In the end, and when in doubt, I come down on the side of "keep the government the hell out of anything even remotely close to our personal lives." I think that is especially true with respect to religion. Many Christians, myself included, would find great offense in government sponsored displays critical portions of the Quran. The only way in my mind to be assured that the government does not advance religious views I find offensive is for government to advance no religious views or goals. Religion is personal and ought not be established, even when it is viewed consistently by 98+% of the citizenry, or its free exercise be abridged by any action of the government.