Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, June 28, 2005

The Washington Post on the 10C's and Division

Here is today's Washington Post editorial, endorsing Justice Breyer's opinion in the Texas Ten Commandments case.   As I mentioned yesterday, Justice Breyer puts the "divisiveness" of religious expression at the heart of the inquiry into its constitutional validity.  The editors write:

In striking down the Kentucky counties' displays while allowing Texas's, the court sends a strong message that new displays created specifically to promote religion will get the most exacting of judicial scrutiny. But it also suggests that it will grandfather in longstanding monuments whose uprooting, as Justice Breyer put it, would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid." The court's approach may not be philosophically satisfying, but in practical terms, it isn't a bad way to evaluate public religious monuments.

My view, again, is that this approach actually is a "bad way to evaluate public religious monuments."  By the way, to say this is not to endorse the idea of Ten Commandments displays and similar monuments.  I'm inclined to agree with Tom Berg that such displays, and the surrounding litigation, distract us from the real religious-freedom challenges.



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