Hi everyone. I have been puzzling over the plurality opinion and Breyer's concurrence in Van Orden, and would love to get folks' thoughts on several issues:
(1) The bulk of the plurality reads as if the joining Justices think any Ten Commandments display is okay, except a solitary one in a public school. But then, in the final paragraph, they say that the display at issue is okay because "Texas has treated her Capitol grounds monuments as representing the several strands in the State's political and legal history. The inclusion of the 10 C's monument in this group has a dual significance, partaking of both religion and government." These two sentences suggest that it is the incorporation of the 10 C's into a larger display that legitimizes them in this instance. What to make of these sentences?
(2) Breyer's concurrence says that the circumstances surrounding the display's placement and the display's physical setting provide a strong, but inconclusive, indication that the monument conveys a predominantly secular message -- and that the lack of a previous legal challenge is determinative of the monument's constitutionality. This leaves me with two sets of questions:
(a) Is this a conjunctive test (i.e., the display must meet all of these factors -- proper circumstances and physical setting and non-divisiveness -- to be constitutional, and one would thus not even get to divisiveness when the circumstances and setting reflect a plainly religious message); is it a disjunctive test (i.e., a display will be upheld if it meets any of these factors, and he got to divisiveness only b/c the display was on the "borderline" with respect to circumstances/setting); or is it some kind of balancing test (and, if so, what weight is to be given to each of these factors -- is divisiveness the most important of them, or is divisiveness an issue only in cases on the "borderline"?)?
(b) Is this a "test" at all -- i.e., is he simply saying that this monument plainly falls on the constitutional side of the line, but not purporting to state where that line lies?
(3) Is there a "controlling opinion" in Van Orden? Under Marks, a controlling opinion is one that rests on the most narrow grounds. Under the case law, an opinion will be deemed controlling only when it is a logical subset of other, broader opinions; it must present a common denominator of the court's reasoning and fit entirely within a broader circle drawn by the others. Whether it is the plurality or Breyer's opinion that rests on "narrower grounds" -- and whether there is even a controlling opinion at all -- will turn, at least in part, on the interpretation that you give to each of these opinions. Do you think there is a controlling opinion and, if so, which one?
I'd really appreciate whatever light folks might be able to shed on these issues.
Thanks,
Ayesha
Ayesha Khan
Legal Director
Americans United for Separation of Church and State
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