Decades of the Decalogue

In his concurring opinion in today's disappointing Supreme Court decision in Van Orden v. Perry Justice Breyer notes:

As far as I can tell, 4o years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to "engage in" any "religious practice," to "compel" any "religious practice," or to "work deterrence" of any "religious belief."

This is quite a precedent, amounting to a sort of squatter's right for the surrender of our constitutional protections. While good arguments have been made that opposition to such ostensibly harmless public religious displays is not as important as contesting more substantive forms of religious discrimination, today's decision seems to invalidate this line of reasoning. Instead, the folly of tolerating even minor public endorsement of religion is laid bare before us. Similar arguments have been made in other venues, with respect to the "one nation, under god" clause of the Pledge of Allegiance, for example, and the "in god we trust" motto on our currency. Methinks, perhaps, we doth protest too little.

While challenging these monuments on constitutional grounds may no longer be tenable, there is ample opportunity to argue with their very substance. Perhaps if the surrounding citations from Exodus were regularly displayed (see, for example, http://www.wash.org/wlapr05_6_1.html) the absurdity of promoting such religious codes as the basis for our contemporary legal system would be more apparent.