Bench Memos

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Supreme Silliness, Part Two


After the ridiculousness of Justice Souter’s adventures in interior decorating, consider the sublimity of Justice Stevens’ foray into the history of theology. In his dissent in the Van Orden case from Texas, Stevens warns darkly of the terrible consequences of choosing among different versions of the Ten Commandments: “There are many distinctive versions of the Decalogue, ascribed [sic] to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.” Why does this matter for constitutional purposes? By permitting the display of one particular version of the Commandments, Stevens says, “Texas tells the observer that the State supports this side of the doctrinal religious debate.”

Horsefeathers. Texas was evincing no support for any “doctrinal” view whatever, when it merely permitted the Fraternal Order of Eagles to erect its monument on the capitol grounds. Were the Eagles–a nondenominational group interested in advancing a Biblically-based morality–choosing sides among Jews, Catholics, and various Protestants by selecting a particular text? Um, no. As Stevens himself admits, the text on display in Texas was a “product of a compromise” precisely intended to achieve a satisfactorily ecumenical effect.

As Justice Scalia points out (in his dissent in the Kentucky case), many Americans are probably not aware today of any age-old sectarian disputes over the text of the Ten Commandments. Scalia in fact declares that he himself had not been aware of it until now–and he probably knows more about theological matters than most of the justices. More importantly, most Americans who do know of these historic disputes don’t feel that they have a life-or-death stake in them. And I’d wager that among those Americans “pious and learned” enough to be up to speed on such a subject, the overwhelming majority are in favor of public displays of the Commandments. Tolerant discussion of how to read and interpret the Commandments is the order of the day in contemporary America–not seething resentments and barely suppressed urges to replay the Thirty Years’ War.

Leave it to Justice Stevens to assume the worst about Americans–and to present us with a perfect Catch-22, that if there is no perfect text of the Commandments on which all believers can agree, none at all can be displayed.


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