Religious Heckler's Veto

I'm still in the process of organizing my thoughts on the Van Orden and McCreary cases, so this post isn't a direct commentary on them. Rather, I wanted to opine on a critique Eugene Volokh (cross-posted to SCOTUSblog) had of the court justifying striking down the display of the 10 commandments on the grounds it was "divisive." He argues that empirically, the court's striking down of state-sanctioned religious displays has caused more divisiveness than the display itself. Ergo, the Court's logic gets hoisted by its own petard, if it really cared about ending religious strife, it would not hand down rulings that go against the sentiments of the religious majority.

It's a crafty argument, but, like Sanford Levinson, I still think it's wrong. It seems to me that such a position is the equivalent of a religious "heckler's veto." If we accept that governmental religious displays do cause some amount of religious division (leaving aside whether it is more or less than that in the aftermath of a court case), then the problem is that religious persons are reacting badly (dividing) over the court's refusal to allow them to divide. Any controversial case is going to promote some negative reactions--backlash is predictable when the court sides with the minority over the deeply held views of the majority. However, to vest the majority with this sort of power would to strip the court of its status as a counter-majoritarian check. If minority rights can be ignored whenever the majority cries loud enough, the "rights," so to speak, become non-existent. Professor Volokh's formulation echoes eerily of claims by southern racists that the court's decisions fostered more racial strife than if they had just left well enough alone. True or not, it really doesn't follow that the cause of racial tranquility would have been furthered had Brown never been decided. Indeed, one could argue that in virtually any case where an unpopular minority is granted protections that prevent the majority from acting as it otherwise would, the amount of outcry that follows the opinion would outweigh the outcry before it. This is simple mathematics--there are more members of the majority than the minority, and thus more persons to be aggrieved when their side loses. However, in the long term, reconciliation and stability are served in a community that makes tolerance its modus operandi, not a benevolent exception (I want to stress, by the way, that I am not casting any negative motivations upon the good Professor. Indeed, he specifically disclaimed that he was offering any sort of "vision" of First Amendment jurisprudence. I'm merely following the argumentative path he lays out to, what seems to me, its logical conclusion).

The other objection I have to Professor Volokh is that I think that, in the short-term at least, religious strife will be enhanced regardless of which side the Court rules for--so long as the court takes the case. This is because of the structure of our system--it's called "adversarial" for a reason. Court cases take things out of the realm of political debate, with all of its compromises, alliances, and shifting principles, and distill it down to simple X v. Y. Obviously, Courts can and do often craft compromise rulings, but the overarching framework is one of winners and losers (or sometimes, partial winners and partial losers).

On an empirical level, it would appear that the strife comes in when religion is pushed out by legal decree. But the history of religion clause litigation suggests this perception is skewed. Since the past 40 years have given strict separationists far more victories than defeats, if it is just legal decisions that cause strife, it might appear that it is strict separation that is the cause. Furthermore, since there are few cases that seek to add religion where it was absent, the inverted scenario cannot be tested. However (and this is just a sentiment I get), it seems to me that when religious groups win, the result is not tranquility at all; rather, Christian groups see the rulings as green lights for a more aggressive pursuit of their interests. This is just as "divisive" as when they lose and claim victimization. Hence, I disagree with, e.g., Listless Lawyer when he claims that "religious divisiveness" (and the culture wars in general) are products of the courts--or more accurately, the opinions and rulings of those courts. Instead, the courts are merely the most high profile (and high stakes venue) where these battles are played out.

Such a view is pessimistic on my part, because it offers little hope for short-term reconciliation in the culture war. If religious groups win, they press the attack, if they lose, they cry prejudice and counter-attack. Either way, the division remains--a product of a legal system which encourages participants to view themselves as combatants (and which, especially in constitutional law, is uniquely high stakes, winner-take-all).

I would continue to argue, though, that it is unfair to blame the victims of state-sponsored religious messages for the refusal of the religious majority to abide by or accept the constitution. Such a view turns constitutional law on its head--minorities, especially those who have little political support to begin with, already have enough trouble getting on the judiciary's radar screen, to be shackled with an inherent disadvantage from the start would make a mockery of the protections our bill of rights purports to afford. As Justice O'Connor so eloquently put it, we "don't count heads" when it comes to constitutional rights.