Breyer Splits the Baby

In yesterday's Supreme Court decisions, Justice Breyer did something I didn't think possible; he successfully split the baby. In doing so, he went a long way toward defusing one of the more divisive issues of our time. Though many pundits and commentators on both sides of the political divide have already criticized the decisions as unprincipled and convoluted, I think this criticism is misplaced. Breyer voted to remove the Ten Commandments display in Kentucky, a display that was the product of transparently religious motives. But he held that the display in Texas, which had been erected decades ago by a largely secular group, did not run afoul of the Constitution. On a purely fact-specific level, I think Breyer got it exactly right.

More importantly, however, Breyer may have found a way to calm the escalating battle between traditionalists and secularists in this country. Nothing illustrates this better than imagining what would have happened if these decisions had both gone the same way. If the Court had ruled that both displays were unconstitutional, emboldened secular groups would not have settled for their victory. They would have challenged even more examples of publicly-funded references to God and religion. And while they might well be right on the merits (as they were in the Pledge of Allegiance case) the result would be to further validate the fears of those on the Right that liberals are somehow trying to take away all their cherished traditions. The anti-judicial hysteria of the Right would escalate even further. The red/blue divide would only increase. Similarly, had both displays been upheld by the Court, the Roy Moore wing the Republican party would have treated the decisions as a license to erect religious displays in every town square, school, and courthouse south of the Mason-Dixon line.

Instead, Breyer found a way to "grandfather in" the older, more benign references to religion while preventing the new and deliberately provocative ones from being created. Breyer's compromise prevents the attack on tradition that so agitates many Americans while at the same time making clear that, going forward, we will follow the letter of the law and keep church and state separate. I can't think of a more reasonable approach to the issue. Under this new legal regime, neither side of this culture war will have much incentive to continue litigating these cases. Diehard secularists now know that they will not have much success removing long established religious references, and religious zealots know that any new attempts to introduce religion into the public square will likely be rebuffed. And, best of all, our courts can now move on to more important business. So to Justice Breyer I say, well done!