I think there's much to what Alan says, but I think the
relationship between national and local politics is complex. For instance,
while choosing U.S. Supreme Court Justices is a matter for national politics,
many groups that organize to influence that will also have local chapters and
allies, which will get involved in state-level politics, and sometimes even in
local politics; the anti-abortion movement is one example. Moreover, one may
influence national politics by working through state or local-level politics,
for instance by pressuring the state legislature, a city council, or a school
board to take symbolic action protesting against federal constitutional
decisions, for instance relating to religious symbolism and the like. My sense
is that McCreary County indeed stemmed from local-level political activity
aimed at symbolically protesting the Court's Establishment Clause decisions.
Again, this doesn't tell us what the right answer is under the
Establishment Clause, or under other clauses. Perhaps an answer that leads to
some extra political mobilization along religious lines is nonetheless correct.
But it does suggest that using the supposed divisiveness of a decision as a
criterion for determining whether the decision is right, or determining what
rule to adopt, would not be a good idea.
Eugene
Alan Brownstein writes:
Eugene is certainly correct that sometimes a constitutional decision intended
to take an issue off of the table of political deliberation and avoid
political/religious divisions will have counterproductive consequences. I tend
to see this as an unavoidable cost of deciding constitutional cases at least in
part on some understanding of social reality and some prediction of how the
decision will influence human behavior. Courts will make mistakes in this
regard -- and they will make mistakes in many areas of constitutional law that
extend far beyond the religion clauses.
If we focus on the religion clauses, however, I think constitutional decisions
do mitigate political/religious divisions in many cases. For example, they
certainly influence the level of decision making at which political/religious
mobilization occurs. Choosing new supreme court justices is a matter of
national politics, not local politics.
There is one sense in which political/religious divisions may reduced if
church-state issues are returned to the table of political deliberation.
Subjecting religious exercise and the promotion of religion to political
control reduces religious integration. More people will choose to live in
communities in which they are the majority or a very well represented minority.
In religiously homogenous communities, there is less need to mobilize along
religious lines. I think there are other serious problems with this kind of
fragmented, dis-integrated society along religious lines. But in many
communities, the absence of minorities will reduce political/religious disputes.
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