The reasonable man replaced

This morning, after learning that the Supreme Court had deemed unconstitutional the display of the Ten Commandments inside two Kentucky courthouses but had upheld a similar display on the state capitol grounds in Texas, I surmised that some absurd hair-splitting had occurred. It turns to be worse than I thought.
As one might expect, eight of the nine Justices thought that the outcome in the two cases should be the same. Because one Justice disagreed, the cases had different outcomes. In this instance, the one Justice was Breyer. That’s a bit of a surprise; usually it’s O’Connor or Kennedy. It’s refreshing to see both of them marginalized for a change.
So what made the difference for Breyer? As Ed Whelan noted earlier today, it was the fact that no one had complained about the Texas display for 40 years, whereas the Kentucky displays had caused agitation from the beginning. Breyer finds this fact “determinative” (see pages 5-6 of his concurring opinion, which I’m not able to link to, but can be accessed through Whelan’s post at NRO’s Bench Memos).
The reasonable man test (what a reasonable person would do in a particular situation) is a staple of the law. So too, the objective observer standard, invoked with some skill by Justice Souter (though deconstructed in Justice Scalia’s dissent) in the Kentucky Ten Commandments case. But Justice Breyer rests everything on the jackass test — the government can display the Ten Commandments on public property in your town unless one jackass decides, within an unspecified time period, to get sufficiently worked up about it. I suspect that this is all the invitation the jackasses of America will need to get worked up en masse.
In the end, the two decisions are unified by the common thread in these kind of cases. Basically, the Supreme Court has decided to “grandfather” religion. In this context, that means leaving references to it on the coins and the old buildings but beating back new references. Perhaps some of the Justices hope that religious belief will wither away as it has in Europe, thus putting an end to what Justice Souter calls “the divisiveness of religion.”


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