Doug Laycock has published an essay in Legal Times on the two recently decided Ten Commandments cases. I highly recommend it. Doug apparently shares my view that among the most striking (and disturbing) things about the decisions was the willingness of three Justices to expressly approve sectarian discrimination (and, in Justice Thomas’s case, to approve of state endorsement of Christianity as such). In contrast to my prognostication, however, Doug concludes that “the supporters of these displays won considerably more than they lost,” even as to future displays: “With respect to new religious displays, the lesson to politicians is never to mention the religious reasons that are, in fact, the only source of pressure to create such displays; to talk blandly of the display’s alleged historical, cultural, or legal significance; to place some secular text or object nearby, whether or not it has any real relation to the religious display; and, whether plausible or not, to vigorously claim a predominantly secular purpose and effect.”
Although a few days ago I would have been skeptical of how much success such tactics would have in the courts — especially in light of the Breyer opinion and the denial of cert. in other cases last Tuesday — now, of course, with Justice O’Connor’s retirement, all bets are off and Doug’s prediction may well turn out to be closer to the mark.
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