Edward Whelan makes this observation over at National Review’s “Bench Memos” blog.

Justice Souter and his four colleagues who joined his majority opinion in the Kentucky Ten Commandments case evidently get their understanding of this country from the New York Times op-ed page. Consider this bizarre closing to an argument section that aims to refute Justice ScaliaÂ’s dissent:

“

ublic discourse at the present time certainly raises no doubt about the value of the interpretative approach invoked for 60 years now. We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief . . . .”

If the Court is going to rest its ruling in part on prudential (i.e., policy) reasons like this, it would be helpful if it would tell us what the dickens its references to “public discourse” and “the divisiveness of religion in current public life” are supposed to mean. Is the Court giving anti-religious forces the equivalent of a heckler’s veto? Or does it seriously believe that we are in even the remotest danger of a modern-day St. Bartholomew’s Day massacre?

Who gets to decide what religious expressions are too divisive to be permitted? Will it be based upon the reasonable judgment of the average citizen? Or will it instead be based upon the wailing and gnashing of teeth of the most overly sensitive religion-haters and member of minority faiths? After all, we have already seen where the so-called “reasonable man” standard was jettisoned in sexual harassment cases in favor of a “reasonable woman” standard – which quickly evolved to be the easily-offended woman standard. Will such notions lead to yet another layer of PC “sensitivity” being imposed in place of the actual, original understanding of the Establishment Clause as it was written by the Framers?

Posted by: Greg at 11:31 AM | No Comments | Add Comment
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