Breyer Wimps Out
June 28, 2005
Justice Stephen Breyer just wimped out.
Instead of coming down clearly against displays of the Ten Commandments on public property, he split the difference, finding a distinction where there was no meaningful one to be had.
The Court was deeply divided, as it often is, though this time, Sandra Day O'Connor, who is usually the swing justice, was on the liberal side in both the Texas and the Kentucky cases.
Had Breyer stayed within his customary liberal camp, the Court would have spoken clearly against what amounts to the establishment of Judeo-Christian religion in this country, as Justice John Paul Stevens pointed out.
Instead, because of Breyer, the Court garbled its message.
It said that it was OK for Texas to have a six-foot high monument of the Ten Commandments on the capitol grounds in Austin but it was not OK to have framed copies of the commandments in Kentucky courthouses.
For the life of me, I can't detect a logical foundation for ruling one way in Texas and another way in Kentucky.
It seems obvious that Breyer was less concerned about logic and consistency than about the negative reactions that would have accompanied a sweeping ruling against displaying the Ten Commandments on public grounds.
He wrote that he was concerned about creating "religiously based divisiveness."
By taking that into consideration, he was bowing to the far right evangelical crowd that was sure to make a stink if the court ruled against displaying the Ten Commandments in both cases.
In so doing, he granted this crowd enormous power--the power to erase the clear words of the First Amendment that prohibit the establishment of religion.