by Matt Barr

Thou shalt sometimes

Splitting, as expected, their Ten Commandments judgments today, the Court did little to further muddle the "Establishment" Clause issue, but they sure didn't help.

The "Establishment" Clause, if English is your first language, should prohibit government from forcing under threat of imprisonment its citizens to believe certain religious tenets, punishing dissent as blasphemy, establishing a Church of America, and so on. As it is, the word "Establishment" is meaningless. The Constitution now supposedly prohibits government "endorsement" of religion, which does not include, importantly, exhorting God to save this honorable Court, the President publicly asking for the help of God to uphold his constitutional oath, or having a Congressional chaplain.

Mr. Justice Scalia in his dissent to the Kentucky case argues that among the competing concerns in cases like this is the ability to acknowledge God "as a people" (emphasis his), but I don't think so. As long as the Free Exercise Clause isn't chipped away nothing government can do can prevent faithful (of whatever stripe) from doing whatever they want in communion. You don't need displays of religious symbols on public land to acknowlege God as a people. So I think that is an unhelpful point.

The point should be the nature of the boundaries established by the Bill of Rights, which until you bump up against them should let people govern themselves. In what I don't think is an unfortunate development, this normally means doing things a majority of people are happy with. There is no right not to feel "excluded" guaranteed by the U.S. Constitution, there is simply the right to be in the majority next time, if you can swing it. Where the Constitution does not prohibit something, the avenue for change should be persuasion, not court order.

As usual these days, SCOTUSblog is the place for a variety of learned analyses.

UPDATE: On the SCOTUSblog discussion area linked above, Rick Garnett wonders: "is 'divisiveness' the new 'endorsement'?" That is, instead of the formerly "Establishment" clause now prohibiting government "endorsement" of religion, does it now prohibit religious "divisiveness"? If so, I may be wrong above when I say there is no right not to feel "excluded." Maybe that's exactly what there is.

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