News analysis
Ten Commandments: Do legal principles support the Court’s split decision?
Also: Implications of the end of O’Connor’s swing vote
July 6, 2005
Fred Hutchison
RenewAmerica analyst
http://www.renewamerica.us/analyses/050705hutchison.htm
The Supreme Court issued a split decision Monday, June 26, concerning state government displays of the Ten Commandments. The Texas state capitol was allowed to display the Ten Commandments in one case (Van Orden vs. Perry). On the other hand, two Kentucky county courthouses were forbidden to display the Ten Commandments in another case (McCreary vs. ACLU). The court intends to sort out such displays on a “case by case basis.” Interestingly, both cases were decided by five-to-four decisions, and the deciding swing vote was different in each case.
O’Connor-Breyer law
Justice Sandra Day O’Connor, a moderate judge, was often the unpredictable swing vote in 5-4 decisions. Her announced resignation on Friday, July 1, is poignant because she voted against both Texas and Kentucky in the Ten Commandments cases. Her resignation came six days after this negative set of votes.
O’Connor has a reputation for deciding her vote based upon the feel of a case. However, a non-rational swing vote does not necessarily result in irrational law. That is because the judge assigned to write an opinion for a 5-4 decision has an opportunity to use rational legal principles in defense of the majority opinion. Is that what happened with the Ten Commandment split decision? The question can be answered by ascertaining whether the difference between the two Ten Commandments decisions can be supported by consistent legal principles.
Judge Stephen G. Breyer, who votes with the liberal circle of judges more often than not, sometimes surprises expectations and makes a cameo appearance as a swing voter. He voted against the Kentucky courts, but voted with the majority to accept the display of the Ten Commandments in the Texas case. He issued a separate concurring opinion so he could explain the criteria that guided him to part company with the liberals plus O’Connor in the Texas case, but to join them in the Kentucky case. In his moments as a temporary moderate, Breyer has a knack for writing an opinion to rationalize a close court decision. Rationalizations can be good or bad, of course. When we have O’Connor-style decisions rationalized by Breyer, we must weigh Breyer’s analysis to see if it provides a sound basis for consistent law.
Consistent legal principle
Breyer calls for case-by-case decisions for Ten Commandment cases because he regards many of them “borderline” in constitutionality. Borderline cases might be decided by feel, judgment call, the application of evolving criteria, or the analysis of enduring legal principles. O’Connor tends to decide her votes by an unpredictable mix of feel and judgment call. Breyer uses evolving criteria to decide borderline cases. He specifically said that the Texas case is borderline.
Judge Antonin Scalia is troubled by the split decision and Breyer’s use of evolving criteria. Said Scalia in his dissenting opinion in the Kentucky case, “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.” Consistent legal principles help to secure a government of laws and not men. Scalia is worried that evolving criteria opens the door to arbitrary court judgments that can lead to a government of arbitrary will of men, and not laws. Scalia thundered his dissent in robust language, calling arbitrary swing decisions rationalized by evolving criteria a “dictatorship of a shifting Supreme Court Majority.” This colorful phrase by a master of rhetoric can never be forgotten once it is heard. I imagine the crystal chandeliers in the courtroom rattled as O’Connor and Breyer were hit by the shockwaves. Sandra Day O’Connor, a frail, irritable, fading light, is retiring from the court, and no longer has to face the magisterial terribiltas of Scalia.
Law and motives
That said, why did Breyer vote to allow the Texas state capitol to display the Ten Commandments, but vote to not allow the Kentucky courts to display them? Both depictions were part of a montage of displays and monuments to cultural and legal history. Breyer said that he distrusts the motives of the individuals who installed the Kentucky display, but can accept the Texas displays as a borderline case of mixed motives. Before we consider Breyer’s evolving criteria, which contributes to his distrust of the motives in the Kentucky court officials, we must consider what motives have to do legality.
Motives are subtle, tricky, slippery things that are hard to get at, but sometimes are a factor in crime. Motives for a crime are sometimes instrumental, but never wholly sufficient, in establishing who is the guilty party. Hercule Poirot was baffled in Agatha Christie’s Murder on the Orient Express, because everyone in the first class passenger car had both motive and opportunity.
Motives may also help to determine the seriousness of a crime. Manslaughter is different from premeditated murder, because the motives are different. However, a crime must occur before the issue of motives becomes legally relevant. Poirot did not begin to search for motives until he observed the dead body. Some states do not recognize a homicide without a dead body. Others require convincing evidence of death if the body is missing.
The violation of law is an objective event because it involves an overt action that violates a specific law. Thus, the existence of crime must be established in court as an objective verifiable fact. One might have evil motives and desire to commit murder, but no crime exists if one has taken no action to commit murder or to conspire or arrange a murder. A crime in the mind or heart might offend God, but only human action can violate human law.
A judge must determine if an objective violation of law has occurred when a state official displays the Ten Commandments before the consideration of motives is relevant. There is no specific law or constitutional clause that expressly forbids displaying the commandments in public places. Therefore, a determination must be made of how a public display of the commandments violates a particular prohibition in the Constitution — or there is no legal issue. Until the fact of a violation of law is established, any discussion of motives is a red herring. Certain factors — such as motives, context, and history, which Judge Breyer emphasized — might play a role later in the trial, but are extraneous until a violation of law is clear. An astute legal analysis will cut away things like motives, context, and history with “Occam’s Razor,” so that the objective essence (or “thing-in-itself”) can be seen. (William of Occam, 14th century English philosopher, proposed a “razor” to peel away layers of complex information like peeling an onion to reach the simple straightforward truth that lies at the core.)
Fuzzy logic and bad grammar
Breyer began his logical process with a vague assumption about the “thing-in-itself,” when he asserted that the Ten Commandment displays are “religious symbols.” When the presupposition is shaky, all the logic that follows will be shaky. After his fuzzy beginning, Breyer switched to “motives, context, and history” as his criteria for determining if a borderline case is acceptable. Notice how he moved to the more superficial factors before he proved why the displays are religious symbols or explained how this violates the Constitution. Presumptions about motives can be even more fuzzy and subjective than Breyer’s unexamined presupposition of “religious symbols.” The analysis of context and history as a rationalization for a fuzzy presupposition must be spun in spidery threads. Breyer built a cotton candy house upon a marshmallow foundation.
Breyer’s errors can be set right by a freshmen course in logic. Build a case for your main presupposition, instead of making an assertion and rushing forward into particulars that do not prove the assertion. Argue from a rock-solid presupposition, and do not to confuse the thing-in-itself (the “numina”) with its superficial covering (the “phenomena”). Establish the major premise of your syllogism with great care, before going on to your minor premise. If a college debater makes his major premise by arbitrary assertion, his debate opponent will destroy him in rebuttal, because his major premise is floating in air without support.
Breyer’s errors could have been avoided if he had listened to his grammar school teacher who taught him not to confuse subject and object. When people stop speaking correctly, they stop thinking clearly. The object contains the thing-in-itself, and the subject is the person who perceives, acts, or has motives in relation to the object. A Ten Commandments display is an objective reality open to legal scrutiny, and is also the object of a logical statement or sentence. The official who has a subjective bundle of motives is the subject of a sentence. Breyer has confused subject and object, and has embarrassed his grammar school teacher.
As the fictional Sherlock Holmes used to say, the error is “elementary.” At one time, a liberal education rooted out a student’s elementary errors through grammar and logic. A course in Quintilian’s rhetoric did the job beautifully. The humanities, which once served as the core curriculum at colleges, are now replaced by a smorgasbord of superficial electives. The surviving humanities have been gutted and neutralized by multiculturalism. This system produces people who make decisions like O’Connor and rationalize their decisions like Breyer. An advanced civilization cannot long be sustained by those who are not in command of the basics of elementary education.
“Religion” malapropisms
The use of vague, slippery words is another evidence of a deficit in elementary education. An elementary education is successful if one writes and speaks clearly, because he has selected and framed precise words to convey sharply defined ideas. The word “religion,” for example, can be used in a very specific sense, but Breyer uses the word in a way that is broad, vague, and blurs his meaning.
Breyer calls a display of the Ten Commandments a “religious symbol.” Before we can comment upon this loaded label, we must unpack the words. First of all, what is the definition of religion? In common usage, it can be many things, including a system of faith and worship, a set of doctrinal or theological beliefs, a religious order, a set of spiritual exercises, a belief in a supreme being, or devotion to a principle. The First Amendment refers to religion only in context of “an establishment of religion.” The magnificently educated gentlemen founders who penned this line understood that the word “establishment” imparted to “religion” a precise meaning. The only definition of religion that fits “the establishment of religion” is a denomination, or religious order, or other institution that men can organize and establish. The founding fathers were concerned about the issue of Christian denominations that were the established churches of certain states. This is the only definition of religion that has any traction in the Constitution. Does the display of the Ten Commandments by a state agency constitute the establishment of a religious denomination by the state? Of course not.
The endorsement muddle
Breyer says that “endorsement of religion” is what offends the court in the Kentucky case. “Endorsement” is one thing and “establishment” is another. O’Connor-Breyer law has wandered far from the Constitution, unless there is a logical necessity that an endorsement must swiftly deteriorate into an establishment. Only the most imaginative or paranoid person could suppose that an endorsement of “religion” by a state is evidence that the state has established a religious institution or is on the verge of doing so.
Is a Ten Commandments display an “endorsement?” The Ten Commandments are a condensation of God’s law, the universal moral law. Can the display of law be an endorsement? Were the state officials of Texas and Kentucky saying to the public, “We approve of the Ten Commandments and recommend that you approve of them too?” That is unlikely. God’s law judges us and condemns us because we don’t obey it. Both God and man’s law warns to us against evil behavior, stings our consciences, warns us of consequences and establishes the limits of behavior that will be tolerated. The posting of law–such as the Ten Commandments–is a warning, not an endorsement.
So far, Breyer’s malapropisms include “religion” and “endorsement.” These muddles are made worse by a misunderstanding of the nature of law. Breyer is a vocabulary-challenged judge and has lost his way in the realm of words. Yet another consequence of a weak elementary education.
A religious symbol?
Are the Ten Commandments a “religious symbol,” as Breyer says? A symbol is a sign with a “referent,” which is an object of meaning to which the sign points. Religious symbols can be an aid to worship because they point to divine objects that can be worshiped. But suddenly, we are thrown into a definition of religion quite different from the kind of religion implicit in the establishment clause of the Constitution. O’Connor-Breyer law uses a slippery definition of “religion” that varies according to O’Connor’s fluctuating moods and Breyer’s changing needs for rationalization.
Is there any conceivable definition of “religious symbol” that fits a display of the Ten Commandments? There are two: (1) A religious legalist might believe obedience to the universal moral law is “religion,” and that the Ten Commandments are a symbol of that religion; and (2) A religious mystic might use an image of the Ten Commandments as a symbol of the holiness of God, and use it as an aid to worship. Both of these practices are possible but rare. Neither the legalist nor the mystic would be offended by a public display of the Ten Commandments.
The ACLU law of hurt feelings
The ACLU case that prevailed in Kentucky expressly represents those offended by the displays. No one who is offended by the displays would ever view them as a religious symbols in the manner of the legalist or the mystic. He would only call it a “religious symbol,” if he misunderstood what a religious symbol is.
What the existence of a party with hurt feelings has to do with law, I do not know, but ACLU lawyers have pitched their tents in the swampy campground of “law as hurt feelings.” Law must always hurt someone’s feelings. The attempt to abolish hurt feelings would require the abolition of law itself.
The ACLU goes a step further and condemns hurt feelings even if they are caused by the ignorance of the person offended. If one is offended because he misunderstands what he sees when he looks at a Ten Commandments display, the ACLU proposes that his “rights” were violated. Anyone who is offended by the display of the Ten Commandments because he thought it was a religious symbol would fall into this category. Judges like O’Connor might have a bad feel about a case if they thought someone was offended, even if the purported offense came through ignorance.
What if someone was offended for the right reason? The commands of God are offensive because they convict man of sin. Could the ACLU claim someone’s rights were violated because they were offended by the displayed commandments in this way? Not at all. The Ten Commandments are an equal opportunity offender. They offend people of every creed and people of no creed. The Ten Commandments are nondenominational and ecumenical. They are no respecter of any would-be established church. They indiscriminately offend both free-thinking theists and confessors of creeds with conviction of sin. “Now we know that whatever the law says, it says to those who are under the law, that every mouth may be stopped and all the world may be guilty before God.” (Romans 3:19)
The ACLU might argue that the posting of the Ten Commandments discriminates between religion and irreligion. Not so. Firstly, morality is not precisely the same thing as religion. Breyer said it is OK if something displays a moral message, but not OK if it is too “religious.” Secondly, the Ten Commandments equally offend the religious and the irreligious. The universal moral law is written upon all men’s hearts. That is precisely why it challenges and offends the conscience of every person. Even atheists who embrace natural law theory agree with this. That is why a display of the Ten Commandments is compatible with the statue of the blindfolded lady who hold the scales and the words “Equal justice under the law” inscribed over the main entrance to the Supreme Court. This is a phrase from the Fourteenth Amendment to the Constitution.
An artificial dilemma
Breyer said that the relationship between government and religion should be “separation,” but not “hostility and suspicion.” He may still be stung by President Ronald Reagan’s statement that the courts had become hostile to religion. Breyer explained that his effort to balance separation and non-hostility brings about difficult borderline cases in which a one-size-fits all test is not possible. This was an implicit admission that there will be no consistent legal principles, only evolving criteria.
I am sure that Breyer regards this delicate balancing act as sophisticated and wise. However, his evolving criteria for case-by-case judgment is an engine to stir up legal confusion like clouds of dust.
This legal tempest is all a futile and unnecessary exercise. Breyer’s balancing act is an effort to solve a dilemma created by the court. The court incorrectly supposes that the Constitution decrees that “religion” defined in a broad vague way must be separated by a “wall” from government. The Constitution says no such thing, of course. As courts expanded their fuzzy definition of religion, and secularists became more allergic to the slightest taint of religion, the wall of separation was built higher and higher. The court tried to make the state a bastion of pure secularism quarantined from the plague of religion. We could not come to this strained artificial situation without a powerful hostility to religion by secular elites and a legal system ready to pounce on any creature from the jungle of the religion that got over the sun-bleached and sterile walls of secularism.
Breyer’s criteria
Breyer’s criteria are the motives, context, and history of a display and also whether the display has a “predominantly secular message.” Texas passed the history test because its display was forty years old. This “grandfather clause” allows respect for the past. Respect for the past is a good thing, but how can the passage of time make an illegal thing legal? How does time make display more secular? How does long acceptance and veneration make something secular? Are we not more likely to venerate old monuments with an almost religious reverence and show less reverence for new displays? Breyer is getting things backwards. He is multiplying the confusion because he is balancing apples against oranges.
The display of the Ten Commandments among secular monuments to the past helped to bring the Texas display into a borderline situation. Does a “religious” item tucked away amidst “secular” monuments somehow get cleansed of the taint of “religion?” Does this “cleansing” make it smell better to the ACLU? How does secular camouflage transform the illegal to the illegal? Does the presence of secular items somehow tame and domesticate the religious “animal?” If the animal reverted to a state of nature would it grow vicious? Is Breyer trying to sort the religious “animals” and separate the wild from the tame?
The Ten Commandments displays in the Kentucky court houses were of more recent vintage than the one in Texas, and other secular symbols were added later in an effort to meet court approval. Somehow, Breyer took this as evidence of a religious purpose. Why a recent display must be interpreted as having a religious purpose that an old display does not was never explained. Breyer assumed that because the secular parts of the Kentucky displays were added later, the original display must have had a religious motivation. The
later additions must be a deceitful cover up. But why should Kentucky be punished because their officials were trying to meet arbitrary court standards? “We caught you trying to satisfy us and obey the law! Therefore, you must be guilty.” Only jaundiced suspicions could lead one to get things so backwards. Perhaps, Breyer is only suspicious of living Christians who make new religious displays, but is reverent towards dead Christians who made the old religious displays. “Our religious forebears were honorable folk, but our religious contemporaries are sinister.”
Consider some of the fallacies: (1) A recent date of creation proves religious motives. (2) Time gradually transforms the illegal and sinister to the legal and honorable. (3) Adding secular items after a display has been set up proves improper motives. (4) Adding later items in order to obey the law represents violating the law. (5) Incorrect motives can determine whether a violation of the law occurred. (6) A judge has godlike power to see the heart and read human motives. (7) Religious motives of living religious people are sinister and the object of suspicion by a judge. (8) Religious motives of people who have been dead a long time must have been honorable. (9) A judge’s suspicion makes legal things illegal in borderline cases. These are the fallacies of a child, a person with inadequate education, or a person trapped in irrational myths.
Passive-aggressive justice
The Kentucky officials must have felt that they had been to a kangaroo court. O’Connor’s vote against Kentucky because she had a bad feeling about it and Breyer’s negative suspicions, upside down logic, and confused comparing of apples and oranges must have felt like a no-win situation. The automatic anti-religion vote of the three liberal judges rounded out the 5-4 decision against Kentucky. Kentucky could not prepare an adequate defense, because the arbitrary law of the O’Connor-Breyer court is unpredictable. Their mad-hatter law fluctuates so rapidly that one has no consistent legal principles to stand behind. This is the very nature of a lawless protection-racket state where there is no shelter of law for the weak to hide under from the arbitrary whims of the powerful. As a result, the weak must pretend to be free, while playing the game of their protection-racket masters.
In this case, the masters are a passive-aggressive court that serves the interests of a liberal elite. The passive-aggressive personality disorder is in essence a cluster of behaviors designed to mask an anti-social strain while finding sly ways of being subversive. O’Connor has an antisocial, irrational “whim of iron” cloaked in softness and decorum. Breyer is a passive-aggressive rationalizer who presents himself as seeking to avoid conflict and hostility, while secretly he is driven by antisocial suspicion and malice. His logical fuzziness and shifting concepts are reminiscent of the double-bind head games played by the passive-aggressive. These folks hate unambiguous law, such as the Ten Commandments and a jurisprudence of consistent principles, because it spoils their game and reduces their power.
Justice broken “lock, stock, and barrel”
Every component of Breyer’s rationale to accept the Texas case and reject the Kentucky case is either fuzzy or fallacious. There is no sound legal principle anywhere to be found in these wretched muddles. It is like a gun with a jammed lock, a broken stock, and a crooked barrel. Before the gun will shoot, most of the parts must be replaced. In such a case, why not just buy a new gun? The retirement of O’Connor offers the opportunity to bring in a new judge who is a legal craftsman of consistent legal principles. With O’Connor gone, there will hopefully be fewer 5-4 decisions based upon feelings and fewer opportunities for Breyer-defended kangaroo courts.
RenewAmerica analyst Fred Hutchison also writes a column for RenewAmerica.
© 2005 Fred Hutchison
