I was at the Pew Forum event. Doug was indeed excellent, as was Jay Sekulow arguing the other side. My prediction, like Art Spitzer's, is that Justice O'Connor will vote to uphold one but not both displays (and Justice Breyer may join her). O'Connor famously does this kind of splitting (think Casey, Michigan affirmative action cases, and Allegheny County, where she voted to strike the stand-alone creche but to uphold the Menorah-Christmas tree-liberty sign trio). So which one will she vote to uphold?
1. Second prize -- SOC votes to strike down the Texas display, because it is large and stand-alone (like the Allegheny County creche), and the reasonable observer would see it as an endorsement of its religious content. She votes to uphold the Kentucky displays, because they are surrounded by other documents re: American law (cf. Lynch v. Donnelly, creche surrounded by candy canes, etc.) 2. First prize -- she votes to uphold the Texas monument, because it was erected in 1961, well before Texas officials had reason to believe that it violated the First Amendment. After Stone v. Graham and Allegheny County, officilas know better, so new postings of the Ten Commandments (like Roy Moore's in Alabama, and those in Kentcuky) are unconstitutional. The beauty of this time-anchored solution (which will be counterintuitive to many lawyers) is that most of the existing Ten Commandments displays (Jay Sekulow says there are over 4000 of them on public property) get to remain (no litigation, anger, backlash, etc.), while new ones don't get created. (And the win for Texas makes its former Governor, who will choose the next Chief Justice, quite happy.) So both cases are 5-3 (the Chief doesn't have to participate); Texas wins, the Kentucky Counties lose. Chip Lupu P.S. I'm picking a two case parlay here, so I'd want good odds on the wager. At 8:25, Marty Lederman wrote: > The Pew Forum has posted the trancscript of their recent "event" with > Doug Laycock and Jay Sekulow on tomorrow's two Ten Commandments cases: > > http://pewforum.org/events/index.php?EventID=69 > > I haven't read through the whole thing, but Doug's opening > presentation is terrific -- would make for a very effective oral > argument tomorrow. > > I hesitate to ask this, but does anyone on the list genuinely think > that either of the displays in these cases is constututional? > > This question might be more fruitful (and more fun): Any predictions? Ira C. ("Chip") Lupu F. Elwood & Eleanor Davis Professor of Law The George Washington University Law School 2000 H St., NW Washington D.C 20052 (202) 994-7053 [EMAIL PROTECTED] [EMAIL PROTECTED] _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
