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Breyer’s Wisdom

Just about everybody seems to have found something to hate in this week’s twinned Supreme Court decisions on public displays of the Ten Commandments. Liberals disliked the 5-4 ruling by which the justices allowed a Commandments monument to remain on the grounds of the Texas state Capitol. Conservatives hated the other 5-4 ruling, barring the framed Commandments displays hanging in two Kentucky county courthouses.

If there were distinctions within the camps, they were mainly a matter of degrees. Moderates in both camps praised the part they liked, while admitting they were “disappointed,” as both the Anti-Defamation League and the American Jewish Committee put it, with the part they thought the court got wrong. True believers — most of them, not surprisingly, on the right — raged that the rulings simply meant the court was “continuing its attack on religious freedom,” in the words of the Rev. Lou Sheldon of the Traditional Values Coalition.

Hardly anybody was in the middle, applauding the fact that the court had decided the two cases in two different ways. That shouldn’t be surprising; after all, the court didn’t actually decide to split its decision and seek a middle ground. In fact the court itself was split, like America, into two equal groups. Four justices wanted to rule against the public display in both cases, deeming them naked government endorsements of religion that violate the First Amendment. Four wanted to permit both displays, arguing that the broad values expressed in the Commandments are part of America’s cultural heritage, and that the Founders never meant to bar any religion in public life, only to ensure neutrality among religions.

Only one justice, Stephen Breyer, actually wanted the court to reach a split decision. And so he split his vote, going with the strict separationists in the Kentucky case and with the conservatives in the Texas case.

It was Breyer who raised the distinction between the Texas and Kentucky displays, noting that the Texas monument had been on display far longer and had come to be part of the accepted landscape, and that it carried “little or nothing of the sacred” in its overt setting in a park filled with historical displays. Hundreds of such monuments were placed in parks nationwide in the 1950s by a fraternal order celebrating the release of the blockbuster movie, “The Ten Commandments.” They seem to have been accepted by the public, Breyer wrote, as part of a “broader moral and historical message reflective of a cultural heritage.” The Kentucky display, by contrast, was a recent addition, posted in courtrooms as part of a deliberate campaign by the religious right to promote its views.

Legal scholars and local authorities were poring over Breyer’s distinction this week, looking for guidance on how the Supreme Court wanted them to treat local religious displays, as though the court had actually reached some consensus that might guide them.

But Breyer’s real point wasn’t in the details of his hair-splitting distinction. He was issuing an urgent plea for civility. Ordering the removal of the Texas monument would imply removal of hundreds of monuments like it around the country. In today’s polarized atmosphere, that ruling would ignite resentment across the country, and “could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”

Breyer is on to something here, and the rest of us ought to be listening more carefully. The polarization and rage generated by America’s cultural wars have reached new levels in recent months, making civility and compromise, the life’s blood of democracy, ever-more elusive qualities.

Too many of us, particularly in the Jewish community, have tied our fortunes to a strict reading of a constitutional principle that much of the country dislikes. We have won a great many victories for tolerance in the last half-century, and the country is better for it. But a backlash is in full force, and tensions are running high.

In the current atmosphere, seeking to establish a bit more civility and moderation in word and deed seems not just sensible but urgent. As the Union of Orthodox Jewish Congregations of America put it in a public statement, one of the few that got Breyer’s opinion right, the two Commandments rulings “are a victory for a sensible and moderate approach to the Constitution’s protection of religious liberty and defeat for the extremists of both political poles. It is a very good day for the Constitution in general and for religious liberty in the United States in particular.”




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