Nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’s own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century....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. That is what prevents judges from ruling now this way, now that–thumbs up or thumbs down–as their personal preferences dictate. Today’s opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote the Court acknowledges that the “Establishment Clause doctrine” it purports to be applying “lacks the comfort of categorical absolutes.” What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not.Scalia convincingly argues that the Lemon test, which was a tenuous construct to begin with, should be jettisoned in favor of a straight-foward originalist analysis. Under that view, neither display of the Ten Commandments would run afoul of the First Amendment.
Better still, however, was Justice Thomas' concurrence in Van Orden, where he frankly states that the king has no clothes and calls for a return to originalism AND a rejection of incorporation!
This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges, and return to the original meaning of the Clause. I have previously suggested that the Clause’s text and history “resis[t] incorporation” against the States.
Thomas calls for a return to the orginal understanding of the First Amendment which was that it prohibited only coercive government action with respect to religion. Such an understanding would simplify the court's jurisprudence in this area, and remove much of the subjective activism that characterizes application of Lemon:
Much, if not all, of this would be avoided if the Court would return to the views of the Framers and adopt coercion as the touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act as theological commissions, judging the meaning of religious matters. Most important, our precedent would be capable of consistent and coherent application. While the Court correctly rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order.Conclusion: only a Court deliberately bent on eradicating whatever trace of Christianity remains in our public life could view a Ten Commandments display or monument on state, not Federal, property as an "establishment" of religion by "Congress."
Clarence Thomas for Chief Justice!