Religion and social conflict

Here's today's Establishment clause news:

http://www.foxnews.com/story/0,2933,351537,00.html

I quote:

"Displaying a portrait of Jesus in the foyer of a Louisiana courthouse is unconstitutional, a federal judge ruled this week, siding with civil libertarians who sued over the display.
But inserting Jesus within a group portrait of historic figures at the courthouse is permissible, the judge said.
...
Lemelle said during a hearing last September that he would have ordered court officials to remove the Jesus icon if they hadn't already expanded the display to include portraits of other historic "lawgivers," including Moses, Charlemagne and Napoleon Bonaparte."

Coming soon to a fine store near you: What Would Napoleon Do? bracelets! Yes, now whenever you need guidance in your life, you can just look at your wrist, see the acronym "WWND?" and ask yourself what the emperor would have done had he been in your shoes. Thus, if you're seated on a crowded bus and an old lady enters the coach, you'll know exactly what to do--give up your seat to her, get off at the next stop, and go invade Russia.

There's a serious side to this. In Van Orden v. Perry, Justice Breyer sided with the majority that a Ten Commandments display on the grounds of the Texas state capitol did not violate the establishment clause, 545 U.S. 677 (2005):

http://www.oyez.org/cases/2000-2009/2004/2004_03_1500/

Not everyday he votes with Scalia and Thomas, huh? You're free to agree or disagree with the majority's holding as you wish, but something really bothers me about Breyer's concurrence in this case--and it's something he believes in strongly enough that he also stressed in a little book he wrote entitled Active Liberty: Interpreting Our Democratic Constitution (2005, pp. 122-124). The religion clauses of the First Amendment, declares Justice Breyer, "seek to avoid that divisiveness based upon religion that promotes social conflict."

I have two objections to that stance:

1. Whichever way the Supreme Court decides in a case involving public displays of the Ten Commandments does nothing to diminish the conflict between those who see such displays as sectarian and those who hold them to be secular totems to our legal tradition. Indeed, arguably a ruling either way not only doesn't diminish these ideological skirmishes, it increases them.

And you can see this if you check a few websites and blogs where the Louisiana ruling is being blasted by conservatives and religious faithful. Had the judge gone the other way, I suspect the Daily Kos would be abuzz. The point is--and this is well made by Larry Kramer in The People Themselves:Popular Constitutionalism and Judicial Review (2004)--judicial rulings are not the last word in constitutional debate. In the U.S.A., the people rule.

2. If the Supreme Court of the United States made rulings based on avoiding social conflict, the Warren Court would have been compelled to rule that the Fourteenth Amendment's guarantee of equal protection did not mean that public schools had to integrate. Personally, when I hear the suggestion that the High Court should act in a manner to avoid social conflict, the first thing from constitutional law that jumps into my head is this:

"So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable..."

The emphasis is mine; the words are from the majority opinion in Plessy v. Ferguson 163 U.S. 537, 550-51 (1896) upholding the philosophy of separate but equal. If the overriding concern in the 1950s had been to prevent social conflict in Little Rock, it's pretty clear the way to have done so would have been to keep dividing school kids by race.

Anyway, when you come right down to it, isn't law all about conflict? I want to raise pigs in my backyard, you're my next door neighbor and you don't want to live next to swine. We have a conflict. The purpose of law is so we have a forum to solve it without resorting to pistols at twenty paces. If there's already a zoning law against pigs, you win. If there isn't such a law, maybe I win, but maybe you organize other neighbors and get the law changed. Or you take me to court arguing through the common law of nuisance that your property values are going to diminish thanks to my fondness for pork production.

At a certain level, ruling in a manner to avoid social conflict is like officiating a football game in a manner to avoid physical conflict; it doesn't work. No matter what courts rule about Ten Commandments displays, abortion, or gay marriage, there's going to be plenty of social conflict in these issues for years to come.