Who is it that's not making sense, Rich?

Rich Lowry must be having a hard time thinking of new ways to be a partisan hack.  His latest column on the oral arguments that the Supreme Court heard last week on ten commandments displays would be a masterpiece of obfuscation if it weren't for the fact that, try as he might, he can't really obfuscate anything. 

The column is titled: Thou Shalt Make No Sense: Commandments and confused jurisprudence.

Rich says:

The Supreme Court has just heard oral arguments in two cases — one in Kentucky, the other in Texas — involving the display of the Ten Commandments, thus opening another act in the long-running absurdist drama known as "Supreme Court Establishment Clause Jurisprudence."

The First Amendment says that "Congress shall make no law respecting an establishment of religion." Throughout most of American history that has been taken to mean — oddly enough — that government can't establish a religion. It is the Supreme Court in recent decades that has taken this straightforward admonition and made it an impossible-to-understand mess.

Impossible to understand?  Absurdist drama?  Tell us more, oh, Richy Rich.  Just how confusing is their establishment clause jurisprudence?

But Van Orden got his day in the Supreme Court, because the Court lives by a commandment of its own: "Thou shalt make no sense." Long ago it rejected any clean standard for interpreting the establishment clause, opting for a confusing morass instead.

So what should we expect?

Expect tangled 5-4 decisions in the two cases that do little to clarify anything.

There's only one place where Rich tries to actually explain the Supreme Court's standard, and gosh, he sure is trying to making it sound confusing:

As near as anyone can tell, the Court's standard for constitutionality is whether a reasonable observer would conclude that government is endorsing religion as a general matter.

But wait, that's actually not that confusing! 

Now, deciding whether a reasonable observer would conclude something or not is not necessarily easy, but then a lot of legal standards aren't.  It's hard to put your finger on what "beyond a reasonable doubt" means, but that doesn't change the fact that this standard is widely used and isn't going anywhere any time soon.  And if you actually read some of the things that the Supreme Court wrote on this subject (a quotation would sure be nice, Rich, if for no other reason than to show that you did read something), you'll find that they are certainly articulating a standard that can be readily grasped.  Justice Blackmun wrote, for example, in his Allegheny opinion:

The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from "making adherence to a religion relevant in any way to a person's standing in the political community."

and he is clear about the fact that judges will still have decisions to make about what the overall thrust of a religious display is:

[T]he government's use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends upon its context. These general principles are sound, and have been adopted by the Court in subsequent cases. Since Lynch, the Court has made clear that, when evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether "the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices."

If you think this is kind of a mushy middle standard, I would tend to agree with you.  I actually don't really buy it, because I'm a pretty strictly non-accomadationist.  But it's not unclear. 

My guess is that the reason Rich is trying to convince you that the Court's jurisprudence in this area is confusing is that he knows that the decision will use essentially the standard summarized above.  And he would really like you to think that those librul activist judges on the Supreme Court, with their radibly leftist, nay communist, 7-2 majority of republican appointees, just can't get anything right.  And that's the reason we need some good strict constructionist conservative judges on the court, to tell us that decency doesn't evolve and that the second amendment is the only important one anyway.

-- Michael

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