The problem is all things are like all other things in some ways and unlike them in others.
This is why replacing tests like lemon and tiers of scrutiny with history and tradition fundamentally betrays the animating idea of the conservative legal movement: judges should apply the law not their own policy preferences.
Judges are human and without tests we can be sure that when a policy appeals to them the historical analogs that support it will be more salient and vice-versa.
I understand why it strikes people as counterintuitive -- tests and tiers aren't in the constitution -- but they exist as a methodological device to force judges to commit to a single reading not pick and choose per case.
But wasn’t Bruen a test? It is judges that make up the tests. As such, those tests will likely reflect the judges’ policy preferences. Bruen seems a prime example of a test reflecting justices’ policy preferences. To a different degree, MQD seems like a test that allows judges to justify their policy preferences.
I realize this is an unpopular position, but I wish more people, including law professors and media, would view circuit courts and SCOTUS more as policy making bodies than as groups of extremely knowledgeable and talented individuals with some super power to divine the true meaning of unclear laws. It would make understanding courts’ decisions so much easier. The hypocrisy and intellectual dishonesty of the courts can no longer be explained away.
You'd think that a legal scholar would be ashamed to put into writing that the Lemon test was "incoherent." It was perfectly coherent --- a schoolchild could apply it, much less a lawyer. The only people who ever called it incoherent were judges who were ideologically opposed to the separation of church and state (like Sam Alito), and it didn't have a damn thing to do with its coherency, but rather their displeasure at drawing the conclusions that it clearly pointed at. This is an anti-Establishment Clause talking point, pure and simple.
And now, congratulations, all of you who perpetuated it have got your new "test" --- an actually incoherent mess which results in decisions like Nathan. Enjoy lying in the bed you made.
Great post. I hadn't thought of this until now, and am by no means a religious liberty specialist, but if you're a teacher who doesn't religiously see eye-to-eye with the 10 Cs, wouldn't you potentially have a Title VII claim that might require, say, covering up the first 5 commandments? (Not to mention parents who might have Mahmoud claims, as you suggest.)
Not a fan of this law. But I think you are overlooking something. One does not practice Christianity/Judaism by being in the same room as the Ten Commandments. Mere exposure to words on a wall is not religious exercise.
And there are zero consequences to not looking at the Commandments. No penalties for not reading them, no forced participation in ritual, no required affirmation of their truth. Just exposure. That is the proper locus of “coercion”: whether the specific thing being challenged (in this case, the displays of the Commandments) has a coercive element. Not whether kids are required to go to school. There is a messiness to the logic there. It would sweep too broadly if taken to its logical endpoint.
The question is whether this is really mere exposure. And I think both sides have compelling arguments. Surely it is more like mere exposure than the facts in Mahmoud, where students were being instructed on materials that the parents claim violated their Free Exercise right to raise their children according to their faith. But when the school puts a poster on the wall, there is still an implicit value-laden message which is something like "we think what is on this poster is important, and therefore we think you should think it is important too." And that doesn't go away just because a student can in theory avert their eyes every time the poster enters their periphery. I don't think the poster is coercive, that would be going to far, but the lessons in Mahmoud weren't really coercive either. Nevertheless, the school is still engaging in a type of pedagogical exercise where it is telling students that there is something good and valuable about what this poster is saying, and students ought to incorporate it into their own belief system. I think that message is inherent to the act of putting the poster on the wall.
The question you fail to address is why the State of Texas is making it compulsory to display writings from one particular religious sect’s sacred texts? What’s the proper governmental purpose being advanced by the state requiring an excerpt from the Torah in every public school classroom?
If the law is constitutionally sound, then wouldn’t it follow that it would be okay for Texas to mandate displaying the Beatitudes? Or some text from the Quran? Or from the sacred Buddhist or Hindu texts?
I lived in Texas for 48 years. I feel confident that the Texas Legislature would like to compel displaying the Beatitudes, but would prohibit any display of statements from the Quran or Buddhist or Hindu texts even though those texts contain statements that are very close in sentiment to those in the Ten Commandments and the Beatitudes.
Are the Commandments really a “particular religious sect’s sacred texts?” They’re important to Judaism, every Christianity denomination, and, to my knowledge, embraced by Islam.
The problem is all things are like all other things in some ways and unlike them in others.
This is why replacing tests like lemon and tiers of scrutiny with history and tradition fundamentally betrays the animating idea of the conservative legal movement: judges should apply the law not their own policy preferences.
Judges are human and without tests we can be sure that when a policy appeals to them the historical analogs that support it will be more salient and vice-versa.
I understand why it strikes people as counterintuitive -- tests and tiers aren't in the constitution -- but they exist as a methodological device to force judges to commit to a single reading not pick and choose per case.
But wasn’t Bruen a test? It is judges that make up the tests. As such, those tests will likely reflect the judges’ policy preferences. Bruen seems a prime example of a test reflecting justices’ policy preferences. To a different degree, MQD seems like a test that allows judges to justify their policy preferences.
I realize this is an unpopular position, but I wish more people, including law professors and media, would view circuit courts and SCOTUS more as policy making bodies than as groups of extremely knowledgeable and talented individuals with some super power to divine the true meaning of unclear laws. It would make understanding courts’ decisions so much easier. The hypocrisy and intellectual dishonesty of the courts can no longer be explained away.
You'd think that a legal scholar would be ashamed to put into writing that the Lemon test was "incoherent." It was perfectly coherent --- a schoolchild could apply it, much less a lawyer. The only people who ever called it incoherent were judges who were ideologically opposed to the separation of church and state (like Sam Alito), and it didn't have a damn thing to do with its coherency, but rather their displeasure at drawing the conclusions that it clearly pointed at. This is an anti-Establishment Clause talking point, pure and simple.
And now, congratulations, all of you who perpetuated it have got your new "test" --- an actually incoherent mess which results in decisions like Nathan. Enjoy lying in the bed you made.
Great post. I hadn't thought of this until now, and am by no means a religious liberty specialist, but if you're a teacher who doesn't religiously see eye-to-eye with the 10 Cs, wouldn't you potentially have a Title VII claim that might require, say, covering up the first 5 commandments? (Not to mention parents who might have Mahmoud claims, as you suggest.)
Not a fan of this law. But I think you are overlooking something. One does not practice Christianity/Judaism by being in the same room as the Ten Commandments. Mere exposure to words on a wall is not religious exercise.
And there are zero consequences to not looking at the Commandments. No penalties for not reading them, no forced participation in ritual, no required affirmation of their truth. Just exposure. That is the proper locus of “coercion”: whether the specific thing being challenged (in this case, the displays of the Commandments) has a coercive element. Not whether kids are required to go to school. There is a messiness to the logic there. It would sweep too broadly if taken to its logical endpoint.
The question is whether this is really mere exposure. And I think both sides have compelling arguments. Surely it is more like mere exposure than the facts in Mahmoud, where students were being instructed on materials that the parents claim violated their Free Exercise right to raise their children according to their faith. But when the school puts a poster on the wall, there is still an implicit value-laden message which is something like "we think what is on this poster is important, and therefore we think you should think it is important too." And that doesn't go away just because a student can in theory avert their eyes every time the poster enters their periphery. I don't think the poster is coercive, that would be going to far, but the lessons in Mahmoud weren't really coercive either. Nevertheless, the school is still engaging in a type of pedagogical exercise where it is telling students that there is something good and valuable about what this poster is saying, and students ought to incorporate it into their own belief system. I think that message is inherent to the act of putting the poster on the wall.
The question you fail to address is why the State of Texas is making it compulsory to display writings from one particular religious sect’s sacred texts? What’s the proper governmental purpose being advanced by the state requiring an excerpt from the Torah in every public school classroom?
If the law is constitutionally sound, then wouldn’t it follow that it would be okay for Texas to mandate displaying the Beatitudes? Or some text from the Quran? Or from the sacred Buddhist or Hindu texts?
I lived in Texas for 48 years. I feel confident that the Texas Legislature would like to compel displaying the Beatitudes, but would prohibit any display of statements from the Quran or Buddhist or Hindu texts even though those texts contain statements that are very close in sentiment to those in the Ten Commandments and the Beatitudes.
Are the Commandments really a “particular religious sect’s sacred texts?” They’re important to Judaism, every Christianity denomination, and, to my knowledge, embraced by Islam.
Great article!