I’ve read Scalia’s dissent in McCreary County v. ACLU, yesterday’s Supreme Court decision that found the display of the Ten Commandments in certain county courthouses unconstitutional. The majority opinion itself is problematic, but so is Scalia’s dissent.

Part One of Scalia’s dissent, which compromises more than half his written opinion, is what I find most problematic. (Kennedy, who dissented as well, declined to go along with this part of it.) First, Scalia states:

On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”

My alarm bell went off when I saw “September 11, 2001.” What purpose does this paragraph have other than appeal to people’s emotions? What legal purpose does it have?

More importantly, when did Scalia start finding validity in the opinions of European judges?

But my main issue with Part One is Scalia’s substantive arguments. In trying to interpret the First Amendment, Scalia provides numerous examples of actions by early presidents and founders and Congresses to show their views of religion and religious practice vis-a-vis the U.S. government. Scalia claims to be an originalist, but what do any of these examples – even those involving President Washington or the First Congress – have to do with originalism or the constitutional text? If you’re going to rely on originalism in interpreting the meaning of a constitutional amendment, you shouldn’t look past the date of that amendment’s ratification. Once that amendment goes into practice and flawed human beings start working with it, divergent interpretations, some correct and some flawed and some of indeterminable validity, are going to arise and multiply. Furthermore, why should we ascribe more validity to the practices of a particular individual or the decisions of a particular session of Congress than to the meaning given by the founders and ratifiers collectively? We shouldn’t rely on some presidential Thanksgiving Proclamation or some chaplain’s opening prayer at a legislative session as guidance in interpreting the Constitution.

There’s also this. Scalia asks:

how can the Court possibly assert that ” ‘the First Amendment mandates governmental neutrality between … religion and nonreligion,’ ” … and that “[m]anifesting a purpose to favor … adherence to religion generally,” … is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only 5 nays in the House of Representatives … criticizing a Court of Appeals opinion that had held “under God” in the Pledge of Allegiance unconstitutional.

Last time I checked, it’s not Congress’s job to decide whether something is constitutional.

That said, part of Scalia’s dissent makes sense. He criticizes the majority, as well as the Lemon test (named for Lemon v. Kurtzman, which set forth a multi-pronged test for evaluating the constitutionality of a government action under the Establishment Clause), for relying too much on examining a government entity’s purpose when trying to decide whether a governmental action is constitutional under the First Amendment. One of the majority’s stated reasons for declaring the particular displays of the Ten Commandments in these cases unconstitutional was that earlier actions and statements by the county executive and legislative bodies showed that they had a religious purpose in displaying the Ten Commandments. It seems odd to me that the purpose in displaying the Ten Commandments should matter. As Scalia points out:

This inconsistency may be explicable in theory, but I suspect that the “objective observer” with whom the Court is so concerned will recognize its absurdity in practice. By virtue of details familiar only to the parties to litigation and their lawyers, McCreary and Pulaski Counties, Kentucky, and Rutherford County, Tennessee, have been ordered to remove the same display that appears in courthouses from Mercer County, Kentucky to Elkhart County, Indiana. … Displays erected in silence (and under the direction of good legal advice) are permissible, while those hung after discussion and debate are deemed unconstitutional. Reduction of the Establishment Clause to such minutiae trivializes the Clause’s protection against religious establishment; indeed, it may inflame religious passions by making the passing comments of every government official the subject of endless litigation.

I tend to agree. It’s a weird way to analyze the issue in this particular case. The physical context of the display matters more than the purpose behind it, I think.

Still, having said all this, even though I consider myself rather agnostic (albeit being born a Jew and self-identifying as a Jew), I’m not completely uncomfortable with the display of the Ten Commandments in a courtroom. It bothers me a little, but not as much as some other things might. It would be different if a judge cited the Ten Commandments in a court ruling, but that’s not the situation here. I don’t think there’s an easy answer to these cases. As Justice Breyer – the only justice who voted for two different outcomes in yesterday’s two Ten Commandments cases – wrote:

“In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a historic relation between those standards and the law) – a fact that helps to explain the display of those tablets in dozens of courthouses throughout the Nation, including the Supreme Court of the United States.”