Ok, 2 out of 2 people in my office doesn't know what "game me" means in this context. Was with you until then!

Move the goalposts. Create false dichotomies. Take advantage of my expectations. Manipulate me.

In 1859, many Americans were angry about slavery, and many other Americans were angry about the idea of limiting slavery. You know something? The justice of the matter wasn’t "halfway in between."

If you could 600,000 lives by setting back emancipation 30 years, would you do the just thing and refuse?

Perhaps justice isn't the issue in averaging. I think we already know it isn't the issue in law.

If you could save...

I have, many times, heard journalists spout the "both sides are angry so I must have done something right" justification.

They never seem to see the obvious alternative: that perhaps your article was so butt-headed that you managed to piss EVERYONE off.

Oh, I don't know. It's an OK ruling for some of us, and I had mixed feelings about the whole issue going into it. Although I'm strongly against endorsement of religion by any agent of the government, I also think it's reasonable for communities to express religious sentiment. In some cases, compromise is a good solution.

I know, I'm a god-hating bastard, but I really don't mind if others have religious beliefs.

I had a professor in law school who used to say, "When I started practice I didn't know how to do a lot of things, and I know I could have done a better job for some of my clients. When I was more experienced, I sometimes got better results than my clients actually deserved. In the end, justice was done." Of course, he was trying to be ironic-- most of the time splitting the baby and justifying it by pointing to the unhappiness of both parties is intellectual laziness, or dishonesty, or some combination of both.

The jurisprudence of religious displays is incoherent, and these two decisions merely illustrate this. In truth, there is very little in our legal system that derives from the Big 10-- mostly the Commandments are religious rules. I am the Lord Thy G-d. Thou Shalt Not Take the Lord's name in vain. Keep Holy the Sabbath. No doubt there are those who would like to see these principles enshrined in civil law, but that's not the way our system actually is. If you go with the Catholic version, then you are looking at several rules that cover how we think-- no coveting. That's not what the law does,either. So all this stuff about the Ten Commandments being foundational really comes down to no killing, no lying, no stealing and no adultery. Basic, but hardly original. I don't mind seeing Moses with the tablets in courthouse murals, but holding the rules themselves out as the basis for Anglo-American law is crossing the line, I think.

I'm with Patrick on this one.

I'm a lawyer. An antitrust lawyer, admittedly, but my scholarship interests tend to First Amendment, first, and Supreme Court jurisprudence, second. And I'll disclose right now that I haven't even read the cases yet, but I know they are, taken together, a whopping failure. They are a failure for the same reason the split University of Michigan (!! go blue !!) affirmative action decisions were a failure when they came down. They are a failure for the same reason much of the Establishment Clause jurisprudence over the last couple of decades has been a failure, regardless of which side of the debate you call your own.

This Court has been doing this for years now. They frequently avoid the hard constitutional decisions, and in so doing they haven't really moved our constitutional jurisprudence forward at all (particularly, I would argue, when it comes to the First Amendment's religion clauses). Instead, we are left with the same case-by-case analysis and no new workable framework for lower courts to use in future cases.

I've got to work tonight, but I'll probably get to reading the actual decisions tomorrow evening. I'll think about it a little and post about it, probably, on my live journal.

(As an aside, I cannot for the life of me believe that there is any plausible constitutional doctrine that holds that a display of the Ten Commandments on the wall of the courthouse is somehow more an Establishment than the behemoth granite monstrosity out on the lawn. What are they going to do when it's in the lobby? How about the library? Judge's chambers?) Except that isn't really an aside, is it? The point is that the end results of the next twelve Ten Commandments cases that will (assuredly) be brought in a district court are very likely no more predictable today than they were yesterday.

Patrick's observation about "game me" is dead-on for that very reason. Case-by-case is frequently necessary in constitutional jurisprudence, and I'm not trying to argue that the details can never define the difference between constitutional and unconstitutional when we're talking about civil rights. But lawyers and judges know that what a case-by-case doctrine essentially gives you is room to manipulate the framework to fit your facts, or the facts to fit the framework you like best. When I was on my alma mater's law review, we had to pick the topic for the writing competition to find new law review members. We used the private school voucher issue, which the Court had just agreed to hear but hadn't yet decided. The reason we picked that topic is probably obvious: the case law was so muddled that the decision could go either way, so we figured the ickle first years would be able to do something interesting with it. "Do something interesting with it" could also be read as "manipulate the existing doctrine to come out the way you want in any particular instance."

The decision on vouchers, by the way, did nothing, in my opinion, to clear up the morass.

I'm willing (and would be thrilled) to be proven wrong here by my actual reading of the cases, but I can't really imagine that a split decision like this has done anything to clean up the analysis or give us a new jurisprudential framework in which to analyze the Establishment Clause. What the Court has most likely done is what it's done far too many times over the past several years--dodged the difficult decision and muddied it up enough with twin opposing precedents that they can go the way they want in any given case that comes along later, again without having to go out on a limb.

(Sorry that was a bit long)

I would change Patrick's title around a little. This isn't "how not to think", it's "how to not think". Literally. It's a way of believing that you can form an opinion about a disputed question without thinking about the specifics of the question. It's a shortcut to avoid thinking, and it's a technique for deliberately making yourself stupid.

A good friend of mine calls this type of thinking "The cult of even-handedness." I agree. The press in its logic of being fair to both sides of every issue, (they even fail at that) winds up trying to accommodate various viewpoints rather than getting at the truth of the matter. It drives me nuts when they run a story, then they add some absurdly spun angle from some spokesperson as a counterpoint, but they never mention the overwhelming evidence to the contrary.

Just because there are opposing sides to a story does not naturally mean that the truth lies somewhere in between.

Of course, he was trying to be ironic-- most of the time splitting the baby and justifying it by pointing to the unhappiness of both parties is intellectual laziness, or dishonesty, or some combination of both.

It's one thing for you to speak here for someone only you know. But I came up with the setting-emancipation-back-30-years-for-instance rather casually. Are you saying someone deciding to save 600,000 lives by splitting the baby is being intellectually lazy and dishonest? And if the majority of blacks in prison decided the same?

Personally, though I'd probably have been happier if they struck down both displays, I'm not terribly steamed about the decisions as they went down. But Patrick's right; the fact that they were split has nothing to do with it. If the decisions had been split the other way, I'd be incensed.

Specifically, my point is in wondering if there are really that many "unlazy" points.

I agree that "splitting the baby is being intellectually lazy and dishonest." The ACLU is right that the resultant case-by-case trials will waste a lot of money. Sometimes that results from the politics of the court, as we see years later when the clerks publish the inside story. Chief Justices of state Supreme Courts, for instance, for the same reason as mayors of towns with deeply divided City Councils, want to have some decisions appear to be close to unanimous, however tortured the compromise is that gets there. In some sense, the measure of a Chief Justice's procedural power is how far he can maneuver from 5-4 splits. It is not ideology. You're right, Patrick. It is, precisely, gaming the system. Justice, as such, has nothing to do with it. *Sigh.*

If you could (save) 600,000 lives by setting back emancipation 30 years, would you do the just thing and refuse?

Yes, because I reject bogus contrafactuals on sight. You cannot know what 30 years of continual slavery can be. You can posit that thousands would be saved. I can posit a plauge running through the overly cramped and frequently sold slave population, wiping out many hundreds of thousands.

I refuse to play the game, because doing so means never being just at all. I can come up with dozens, nay, millions of variations of "allow this evil to last for one moment more, and much good is done in the future." All of them are equally irrelevant to the world that I live in.

You play with your Oujia board. I'm going to stand up and say that the only way to be more just than barring slavery in 1865 would be to have done so far earlier -- or, at maximum, by categorically rejecting slavery at the birth of the nation.

I'm going to stand up and declare torture to be morally wrong -- even if I've got the Mad Bomber and a day to find out where the 1MT nuclear weapon is hidden.

I'm not going to let parlor game contrafactuals even begin to enter play. Life is far harder than a card from a Scruples game.

I also agree that splitting the baby is intellectually lazy -- but how is that dishonest? And how much thinking do we do a day that isn't based on behavior we've exhibited before? How many times an hour are you truly innovative? A day? How many operas are you aggressively composing a month?

And how intellectually honest is it to disregard Patrick's disinterest in the court decision, when the topic of splitting the baby, in itself, was what prompted his post?

PZ Myers--as I said, I'm not really expressing a view on today's rulings. I haven't followed the case in detail and I haven't read anything but the most cursory coverage yet.

Matt Austern--I didn't use the title you suggest, specifically because I don't believe John Scalzi habitually looks for occasions to avoid thinking.

Yes, because I reject bogus contrafactuals on sight.

So which is more intellectually lazy -- splitting the baby, or doing anything on sight?

Patrick, you've made the mistake of generalizing a comment on a pair of specific cases.

To clarify:

1. I don't think the 10 Commandents have a place in the courthouse; it's too much of an endorsement of a specific religion.

2. My "endorsement of religion" radar doesn't ping with a 10 Commandments monument on the grounds of a courthouse, and being an argumentative agnostic, I have a well-calibrated radar on such things.

3. Therefore: Rulings that ban Commandment displays inside courthouses (in most cases) but allow them on the court properties (in certain settings) seem reasonable.

4. As I hold neither absolutionist position re: 10 Commandment displays in court settings, the fact that absolutionists on either side of the argument are disatisfied with the ruling is an extra bonus for me.

5. Assuming that I would apply this comment to any other situation is fraught with peril.

You play with your Oujia board. I'm going to stand up and say that the only way to be more just than barring slavery in 1865 would be to have done so far earlier -- or, at maximum, by categorically rejecting slavery at the birth of the nation.

That's reasonable.

There are perhaps 2 million blacks in prison that need help. Too daunting? Well, turning over your trustfund to the United Negro College Fund might be a good start then. And after them, there are the Indians who aren't making any money from casinos -- you can start liquidating the United States to give them what's there's.

If not, then citing justice might be a little more intellectually casual than at first glance.

I'm not saying anyone is wrong -- I mostly agree liberal white people. But I hardly ever see them making their case. If you've all abandoned the voters in this manner, how do you hope to accomplish anything?

Just chalk this up to me being a concerned citizen. I have no further need to drive the casualness from the thread.

John, I remember we had an argument over reserving the right to be a snob, and we haven't talked since.

I just wanted to say I really, really dislike hidden agendas to the point of classifying snobbery as such an instance. Not saying this to reopen the debate, but to update my point.

I think that the message your Supreme Court is sending with these decisions is clear; that the situation isn't nearly as clear as either of the extreme wings think.

I think it's absurd to make a blanket approval or disapproval for displays of the Ten Commandments in legal settings. Yes, your constitution forbids the establishment of a state religion (with just cause, but I'm not going to get my hate on for Puritans in this thread) but English (and thus American) law decends in part from the Ten Commandments.

So if the Commandments are memorialised in its historical context then it's not imposing religion on jurisprudence. However, if it's an epic statue of Chuck coming down from the mountain with seraphim and lightning and a big index finger pointing down from the heavens towards the First Commandment then you've got grounds to condemn it.

What is it with the left and right fringes and their insistance that everything is simple if we just do it their way? Choosing a hard-line radical or reactionary position can be just as much a way to "not think" as splitting the baby.

Does my last post qualify my participation here as "splitting the baby?" How intellectually lazy and dishonest does that make me today?

Greg: Do you understand "gaming the system"? Well, here I am the system to be gamed. Clear as mud?
MKK

I agree that you probably couldn't come up with a doctrine to cover every conceivable Ten Commandments Case, but the fact is that what we have now is no doctrine, and the fact that everyone is pissed off about it isn't evidence that they did a good job. And my reading of the Establishment Clause cases tells me that the myth of the historical significance category is just that: a myth; the cases are nowhere near as clear as that. If you can look at any given historical use and find a way to argue both sides without mucking too much with the facts, then the doctrine isn't clear.

And I don't think anyone that's posted so far has advocated for a hard right or left line; I'm sure he'll correct me if I'm wrong, but my reading of the point of Patrick's post was only that you can't judge whether something was right or wrong by whether both the left and right are peeved by it. It's too manipulable.

My point was a bit different. I want a Supreme Court that doesn't dodge the hard questions, and I want a First Amendment jurisprudence that makes a bit of sense. There will always be a case that doesn't fit. Right now, no case fits, and every Establishment Clause case has to be decided "on its particulars." That, to me, is a problem, and it's one that leaves the Court free to game both sides all the time, not just when there is a truly factually disparate pattern that needs to be accounted for.

I continue to wonder which set of Ten Commandments is permissible, and who decides. If you look at Exodus, you find a lot more than Ten. I note that the Commandment that forbids the building of altars out of stone gets pretty short shrift. And the one about not making graven images seems to be completely repudiated by the Ten Commandments crowd.

John, to be fair to Patrick, I read it as he did. The lede of your entry begins with the statement that the rulings split the baby and thus "that probably means it's not a bad pair of rulings." Then you get into what the rulings mean to you, making your first analysis sound as if it were more of a general heuristic.

Anyone else remember where split-the-baby comes from? It didn't involve actual baby-splitting, just the threat so as to get the party that actually cared about the outcome to give in. Solomon, being a wise ruler, then awarded the baby to the mother that had given up for the sake of saving it. Under a foolish or unjust ruler, the lying claimant might have gotten the baby.

The relevence of this story to our present political situation is left as an exercise for the reader.

Stephen Granade:

"John, to be fair to Patrick, I read it as he did."

Sure, I accept that it may not have been as clear as I would have liked, which is why I posted a clarification for PNH's benefit and for the general edification of all. This is the occasional peril of writing a blog entry in less than 15 minutes. In any event, I don't mind being a precipitate cause of a PNH rant, which is always a fine thing to behold.

Anton: English (and thus American) law decends in part from the Ten Commandments

This is the right-wing claim; do you know enough law to support this claim? If so, can you provide examples that (e.g.) Kimberly won't chop up? IANAL -- in spades -- but what I've seen points to a massively tangled of traditions; I wouldn't argue that the 10 Commandments had \no/ influence, but I doubt that the law of one small and conquered people had a dominant influence on the succession of traditions of various cultures (Greek, Roman, assorted other) that led to U.S. law.

Jewish take on the 613 "Commandments" [from Wikipedia entry "Halakha"], and a question:

"Broadly, the Halakha comprises the practical application of the commandments (each one known as a mitzvah) in the Torah, as developed in subsequent rabbinic literature; see The Mitzvot and Jewish Law. According to the Talmud (Tractate Makot), there are 613 mitzvot ('commandments') in the Torah; in Hebrew these are known as the Taryag mitzvot תרי"ג מצוות. There are 248 positive mitzvot and 365 negative mitzvot given in the Torah, supplemented by seven mitzvot legislated by the rabbis of antiquity..."

Numerologically (which can be appropriate in a language where the same symbols are used for letters and for numbers) I'll comment that 613 is a prime number, and 613 = 17x17 + 18x18.
248 = 2 x 2 x 2 x 3 x 31.
365 = 5 x 73.

But I'll skip more numerology. My question to the Supreme Court Justices: when can I get to put all 613 commandments in writing, purely as a historical comment on the Law, outside every courhouse in America, which is not (as Bush et al claim) a "Christian nation?"

It's odd; it's always seemed to me that moderation lies in staking out a compassion and reasonable position and rejecting destructive extremes. "Averaging" available destructive extremes does not seem likely to me to lead to justice, or even reasonable compromise. So, though I've seen the arguments Patrick is criticizing quite a bit, I have never seen them as reasonable and it surprises me to see them made. Even in the simplest of situations, the average of two errors is not guaranteed to be correct.

Getting to the specifics: it strikes me as very unlikely that Anglo-American law is based on the Ten Commandments.

The Protestant version (which is presumably what most people making this claim think our law is based on) are:
1. Only one god.
2. No graven images.
3. Don't take the name of the Lord in vain.
4. Observe shabbas.
5. Honor your parents.
6. Don't murder people.
7. Don't commit adultery.
8. Don't steal.
9. Don't lie about your neighbor.
10. Don't covet your neighbor's property.

The only ones of these that are part of our legal code are numbers 6-9. Some of the others have been part of our legal code at one time or another, but others never have. Honoring parents is good advice, but not law. Coveting, rather than being forbidden, is the basis of our economic system.

So we're left with murder, adultery, theft, and slander. OK, our legal system agrees with Jewish law on those matters. But then, have you ever heard of a culture that doesn't discourage those things? Do you think that if our culture had never heard of the Ten Commandments then murder would be legal? Cultures disagree about what kind of killing constitutes murder, of course, but the Ten Commandments don't help with those sorts of subtleties.

I just don't see anything distinctive about the Anglo-American legal system that comes from this one particular fragment of Jewish law. For those who do think the Ten Commandments are the basis of our legal system: what exactly do you think this basis consists of?

CHip: IANAL as well, nor am I particularly religious... all I can go by is the little direct observation and comparison, which I admit runs the risk of misinterpretation. However, I do feel that English law drew upon the Commandments (and Leviticus, to a lesser degree) in formulating itself. Certainly the concepts of homicide, perjury, adultery, larceny, and work-week limitations can be traced there.

I know that Roman and German law are major contributors to the evolution (heh) of English law, and perhaps the gaps between the two aren't as great as I think (in which case I'd be happy to hear about the overlap) but to my eyes those two aren't enough on their own... and I don't think anybody would refute that law courts have traditionally appealed to some form of divinity to lend their judgements weight. In England's formative years, divine right came from Biblical text.

To tell the truth, I don't have much invested in the presence or absence of this kind of statuary in legal buildings. I'm more concerned that well-educated and reasonable folks have decided to burn so much powder over what, from the outside at least, appears to be such a trivial issue as lawn ornaments and wall hangings. It's the flag-burning debate in different guise, as far as I can tell... feuding over a symbolic gesture which has attained some mystical power to horrify otherwise sane individuals.

If the flag-burning debate alienates the moderates on the right, what is this doing to the moderates on the left? (And the whiff of "for us or against us" that exudes from the debate doesn't help either.)

And if the Supremes decided, in this case, to crack the egg in the middle, perhaps it's because they're as baffled as Gulliver was?

To tell the truth, I don't have much invested in the presence or absence of this kind of statuary in legal buildings. I'm more concerned that well-educated and reasonable folks have decided to burn so much powder over what, from the outside at least, appears to be such a trivial issue as lawn ornaments and wall hangings. It's the flag-burning debate in different guise, as far as I can tell... feuding over a symbolic gesture which has attained some mystical power to horrify otherwise sane individuals.

There's a huge amount of context here you appear to be unaware of, the like of which does not exist in the flag-burning case. For one thing, Christianity and the power centers of American society used to be much more entangled then they are now - including but not limited to the government. This did not do non-Christians any good. For another (albeit related) thing, there are vocal factions in the US with a disturbing amount of influence who have made numerous statements (and taken numerous actions) indicating that they would like to return to that state, only more so.

Anton: Certainly the concepts of homicide, perjury, adultery, larceny, and work-week limitations can be traced there.

Working six days a week and getting a holiday on the seventh is, as a pattern, traceable (probably) to the Mosaic law: but regular religious holidays to give working people a day off is a tradition in more cultures than the Mosaic.

The idea that the concepts of "homicide, perjury, adultery, larceny" in English law can be traced to Mosaic law is, on the face of it, so absurd a claim that I assume you have some academic citation to prove your point.

I hereby use this opportunity to make a confession. At thirteen or so, I told an adult acquaintance that some president (maybe JFK) must have done the right thing on some issue (perhaps Southeast Asia) because he had been criticized from both sides, and I remember thinking that pronouncement particularly sophisticated. I still wince looking back at that display of fallacy.

Jon Carroll said in his Unitarian Jihad piece that "sincerity is not enough." Moderation isn't, either.

Honestly, I don't think the baby has been so much split in two as circumcized: a little bit messy and painful, and likely not necessary, but something you can live with and no serious harm done despite all the screaming.

The court did the ruling based on the old "How obnoxious and in-your-face is it?" premise of good manners. Having the Ten Commandments prominently displayed in the courtroom is more obnoxious than having them stuck in a mowing strip somewhere outside. I'd be happier if the monuments were returned to the fraternal order of beagles or stacked on Cecil B. DeMille's grave, but honestly, I'm already used to ignoring the monotheism endorsed on our coinage and included in the Pledge (which I also object to on the ground that no one has any business forcing children to swear oaths), I can ignore a block of granite donated as an advertising stunt for some dumb movie fifty years ago. And we have bigger fish to fry anyway.

Besides which, the lovely thing about the law is that Justice's sword cuts both ways. The religious right gets to have a ten commandments tablet on some corner of a courthouse lawn, which gives ample precedent for the courts not being able to do a damn thing when the religious right starts to whine about neo-pagans invoking Samantha Stevens as a loa-spirit incarnation of the great Mother Goddess and having pagan rituals in a public park around the advertising-stunt statue just donated by TV-Land as a cross-promotion with the new "Bewitched" movie. And if you know anything about neopagans, you know they're going to do exactly that, and more, if just because it's too amusing.

Beloved TV icon or religious icon? Religious icon (which curiously forbids itself) or advertising gimmick for Hollywood bible epic? So long as whatever you've got can be taken as secular or is easily ignored by the average person, I think you're doing pretty good.

So, if only four of the commandments are actually enshrined in law, why not, for a different kind of compromise, allow just those four to be displayed, and not the others?

I suspect it's really the other six that the pro-commandments people care about. So at that point they might decide things had become ridiculous, and concede defeat. Now that would really be splitting the baby.

Regarding getting all flummoxed up over lawn ornaments: What Dan Blum said. The battle for a separate church and state in this country is nowhere near over.

We still have judges in this country that will take your child away in a custody dispute if you are a pagan (and get away with it), and the whole six day work week thing? It was frequently used to discriminate against business people for whom "Sunday" was not the Sabbath in their religion, and who were thus required (in a small town) to keep their businesses closed two days a week instead of one. Generally, though, if you have weekends off you should thank a union, not the Ten Commandments.

Establishment Clause doctrine is not just about massive marble muck-ups of stone tablets delivered from on high. It's about private school vouchers, property taxes, gifted land, Title I, holiday time, prayer in schools, evolution, and any number of other things. And when they get the Free Exercise Clause tangled up in the Establishment Clause doctrine, it gets worse. You think of a way the Church and State can be entangled in this country, and they've probably tried it. Likely in Kansas (no offense, Kansas).

It's important. And the First Amendment is in a lot of trouble right now, if you ask me. Canaries are dropping like flies. So, to me, a dodge on the issue--in either direction or no direction at all--that leaves them free to do what they want on any given future case without application of a principled framework is nowhere near good enough.

Now I have to work again. More play later.

And who knows? Maybe I'll read the opinions and come back and eat crow. Maybe they did develop a framework for future Establishment Clause jurisprudence. If anything, my sounding off ahead of time almost makes it more likely, doesn't it?

From where I stand (warning: I am not a USAn, and disestablishment is not a principle burned into my bones), the argument would seem to be: if you can realistically substitute a display of the Ten Tables, or of Hammurabi, for the Ten Commandments, then the same principles should apply -- that is, if the clear intent is to show iconic moments in the development of the rule of law, then there would be no issues. If it's to privilege one particular source over others, then that's another matter (exacerbated by the fact that Common Law is probbaly less influenced by the Torah than by either Germanic law/Custom or by Roman Law, with Roman Law probably up at the top).

I'm willing, having done some legal history work in my LL.B., to argue for specifically Christian influence on the development of the common law, but far more via Gratian and via general scholastic natural law models than via the Ten Commandments. But I don't see a big push towards putting up statues of Gratian and Aquinas to show the law's debt to the mediaeval canonists and scholastics.

Legal decisions which take all circumstances into consideration tend to be limited in easy general application. There's a real reason for distinguishing on the facts, which seems to be what your Supreme Court has done.

Establishment Clause doctrine is not just about massive marble muck-ups of stone tablets delivered from on high.

That was exactly the point I was trying to make, albeit clumsily and from a different viewpoint.

For those mortified that I should tie the Commandments to English law, well, that's what I was taught in school. Admittedly it was primary school, with a brief excursion in Ethics for Engineers (which dealt more with Hammurabi than Moses, truth be told) a looong time ago, but that in the past appeals to divinity and the legitimacy of sacred texts informed the making of laws is the common perception of those in my community, anyway. (Which does contain a broad variety of faiths and cultures, not just decendants of Christianity or Europeans.) Remember that the general public aren't lawyers either... how do you make this case to them?

The memorial debate looks Big-endian/Little-endian from my perspective. Wasting time and effort on what is (as Beth pointed out) for all intents and purposes a graven image seems to me to be a distraction from the issues that have concrete and measurable detrimental effects; vouchers, discriminatory taxation, human rights abuses, gerimandering, fraud, cronyism, and a dizzyingly-tall stack of broken laws and treaties don't need slippery slope arguments to make them urgent. I can't help but feel that the billable hours devoted to a rock wouldn't be more fruitfully spent elsewhere.

But maybe I'm the big, dumb, amiable outsider in this waking satire we've made of our planet and am just Not Getting It.

A quick addendum to illustrate my bafflement over the issue; how is it that the establishment of Mothers' Day and Fathers' Day (#5 on Moses' Top Ten) don't violate the Establishment Clause and aren't protested as much as the memorials?

(This isn't a snappy comeback... it's a real question to help me understand where this is all coming from.)

For Anton: basically, Mothers' Day and Fathers' Day, while they have presidential proclamations behind them, aren't established in any more meaningful sense than Congress passing "Eat more poultry week". They aren't statutory holidays, except in the sense that post offices and such are already closed on Sundays, and government buildings don't have engravings reminding people to buy flowers on the second Sunday in May.

Mike: if you do nothing on sight, I really hope you do not drive a car or operate any other heavy machinery. Anyone driving a car should be prepared to stop when they see, for example, a child walking in front of them. We all have lots of learned habits and reflexes, triggered by a sight, sound, or other sensory input; they are a necessary part of being a human being living in the physical world.

Anton P. Nym:

The problem with the memorials and cases like these being decided without principle, though, is that the law used to decide them will apply in Establishment Clause cases on other issues. The cases themselves don't just apply to the big rocks. So the big rocks become even more important than they might otherwise be.

(There's another issue, though, that I've been avoiding generally--the substantive question of whether the big rocks are actually very important, particularly when they are on the lawn of the very building we need to enter to find justice, the building housing the power of the state; there is a perception there, one could argue, that the availability of justice is related to the level of belief in the precepts etched in granite. And for too many people, it isn't just a perception. My ability to obtain justice under law should not be based in any part on the judge's or the state's views about the religious propriety of my behavior).

I'll post more on Mother's Day v. Ten Commandments later.

This is really too distracting and much more fun than the research I'm supposed to be doing.

Here's what I'm finding interesting at the moment. Mr. Nielson Hayden, up at the top, suggested that broadly applying the everybody’s unhappy, so it must be fair kind of "logic" is a bad idea. Mr. Scalzi clarified that he meant to apply the analysis only narrowly, to this case (digression: the analysis applies, it seems to me, only to cases where both sides are wrong, uncompromising, honest about the extent of their anger, and indifferent to your opinion).
The deciding minority in these cases essentially said that applying any broad rule to such cases is a mistake. This minority was no bigger than the minority who appear to think that such displays are always OK, or the minority who appear to think that such displays are always bad. In other words, there were more votes for there being a rule than votes for there not being one, but because nobody agreed on what the rule should be, we wound up without a rule.
There is something going on here about pattern-matching, about the broad application of general rules, about extrapolating from specifics that is very confusing to me. We need rules of thumb; we need to match patterns and apply rules broadly. It's true that "It's more complicated than that" is a correct answer to any question, but it's not a helpful answer to any question. It's true that everything should be taken case-by-case, but it's also true that it's impossible to take every case individually. Does that mean it's impossible to judge every case correctly?
Of course, as punkrockhockeymom points out, it's CJ Rehnquist's job to make precedents, so the case-by-case business is particularly galling.
Anyway, here's a question: The pattern of everybody’s unhappy, so it must be fair is, applied broadly, a way to avoid having to think or research. So is if Our Only President is for it, I'm agin it. Yet the latter pattern closely matches those situations where I do think and research and issue, and the former does not. Is the argument ad hominem superior to this magical thinking?
Thanks,
-V.

PS: I tried really hard to avoid using the word heuristic in that ramble, only to discover on rereading that it's used in the post. Hmf.

The grounds of decision really aren't on obtrusiveness, at least in McCreary -- they're on purpose and intent. The McCreary county final display might have (in fact, would probably have) been acceptable for the same reason the Texas display was had there not been two preceeding displays in McCreary (and neighboring) county along with a particularly heinous resolution, all of which clearly demonstrated that the intent of the McCreary county display was to promote religion in general and one specific religion in particular.

Although I think vanOrden was decided wrongly, I think it was a far more close-run thing than McCreary, and a split decision does not fundamentally offend me. I agree with the base contention that "split-the-baby is good/right" is wrong, however, and really wish that that sort of thinking didn't influence Breyer when he so split.

I believe that in a society constituted as ours is, with separation of church and state as a defining principle, the mere fact that a law is derived historically from a religious source is irrelevant; if we cannot come up with a nonreligious justification for it, we have no business having it.

Therefore I utterly reject any arguments that the 10 commandments should be put up in a courthouse to show the foundation of our law. Moreover, as others have pointed out, much of our law is based on Pagan sources; if that were the real reason for 10 commandment monuments, the pro-monument crowd would see to it they were given equal time.

I actually have heard more details; both decisions were 5-4, and the swing vote Justice made a clear, if nice, distinction. The Texas case was a monument that had been in place for years with no one objecting AND was part of a larger display showing other parts of the historical development of law. Also, it was outside the courthouse, not inside.

I have to admit that while I have a certain amount of slippery-slope worries about this, I don't feel that that monument in particular would intimidate me or make me feel my rights were being infringed, even though I am not now nor have I ever been a Christian, and am in fact a practicing Pagan. (Not that I feel safe setting FOOT in Texas, mind you, but that's beside the point.) So I agree with the swing vote.

It does not strike me as a case of "split the baby" at all. IANAL; IMVHO.

But this is all a side point. Patrick's right about the main point, which is the perniciousness of false evenhandedness. Case in point: if you read the press, you'd think that global warming is controversial. In fact virtually all climatologists agree that it's happening, and that it poses a danger in our lifetime or our children's; a few crackpots deny it. These are presented as "two sides" in a "debate" in the press, which thrives on controversy. Some people believe the Earth is flat, too; that's not a reason to give them equal time.

Really only three Commandments are effectively part of American law. True, some states still have adultery as a crime, but it's an unenforcable one.

The only proper way to argue a counterfactual is as allohistory. It's stupid to add up the hypothetical American lives saved by bombing Hiroshima and Nagasaki and balance them against the actual dead except as fiction.

Case in point: if you read the press, you'd think that global warming is controversial. In fact virtually all climatologists agree that it's happening, and that it poses a danger in our lifetime or our children's; a few crackpots deny it.

That the climate is warming is controversial only to those who don't read history or geology. Whether the primary cause is human effluent is is a valid question... one whose answer I'm yet convinced is either "yea" or "nay", having been burned on the "nuclear winter" debacle and living as I do on land that was nearly a kilometer under ice 15 thousand years ago, and uncovered 10 thousand years ago.

(However, CO/CO2 emissions are hardly helping and I'm all for anything that'll get rid of this pestistential smog. If Kyoto leads to better air in general then I'll cheerfully sign on the dotted line.)

I'm most concerned about the global heating of the political climate due to the disparagement of the idea that reasonable and well-intentioned people may disagree. Cooperation, sharing, and give-and-take are all central concepts in any kind of pluralistic society... and I see this melting faster than the glaciers.

There are many incidences where splitting the difference between the extremes doesn't make sense; my frustration comes from the increasing tendancy to extend this thinking to all cases, which leads to bitter fights over (IMO) minor differences of opinion.

(Thanks, I'll have mine over easy with a side of wheat toast. Those you can crack in the middle.)

OK, I'm certainly no lawyer and I haven't read the decisions either, but isn't the point of all of this to prevent the courts from issuing rulings that are based on religious tenets?

Has anyone proven that displaying religious documents in (or near) the courthouse has any effect whatsoever on the courts rulings? And if, as I suspect, the answer to that question is "No," then why are we all assuming it as fact?

How about we focus on the fairness of our judges opinions, rather than worrying about the decor in the courthouse?

The trouble is, if you've got a religious nutwad judge or lawyer from either side in the courtroom, you don't need to give them a convenient prop to point to when making decisions based on something other than the actual state or federal law. And it's not as if there aren't bibles in courtrooms anyway, just in case folk fear divine retribution more than a perjury conviction.

I just saw "Inherit the Wind" a couple days ago, so some of this is at the top of my mind right now, though if as with the Texas installation, and the frieze in the Supreme court itself, if it's been there for ages (ages here used in the American sense of decades), it's presented as part of historical context, and no one's making a fuss over it, might as well leave it.

If, on the other hand, it was something made last Tuesday by an Evangelical hell-bent on peddling their brand of religion and placed where folk must trip over it, then it shouldn't be there.

I'm more worried about the vouchers, prayer-in-school and whatnot than this nonsense, honestly.

It's stupid to add up the hypothetical American lives saved by bombing Hiroshima and Nagasaki and balance them against the actual dead except as fiction.

At risk of sounding completely ignorant, why? Evaluating actions based on their reasonably-foreseeable consequences is one of those fundamental things that we're supposed to do with our brains. If I'm at the top of the Empire State Building and I see a man about to throw a bunch of billiard balls over the side, are you saying I should let him do it because the damage I do to him by tackling him is real and sure and the damage that those balls will do to persons and property a thousand feet below is hypothetical?

Dav2.718

About allowing this old monument outside to still stand... It has the weight (pun intended) of History with it, for better or worse.

Look at it this way... Is it an endorsement of religion that San Francisco has the name that it has? Not anymore, because, again, of the weight of History.

(I specify San Francisco because the Chronicle's despicable Debrah Saunders once tried using it as an ad absurdum example against those who objected to a Cross standing on city-owned land.)

Anton: For those mortified that I should tie the Commandments to English law, well, that's what I was taught in school. Admittedly it was primary school

A lot of things that are taught in primary school are at best simplified, if not outright indoctrination; socialization is one of the purposes of school. Consider the attitudes of adults toward children embodied in Archie's Fourth of July (neighboring thread).

David: since when is military strategy as certain as the law of gravity? I can hear Jim saying that military screwups are as certain as the law of gravity, but your analogy is otherwise ridiculous, not just because of estimating casualties but because the instances don't balance: the original compared two sets of deaths where you're comparing an arrest with an action likely to produce fatalities.

Note also that the people who argue the necessity of a bomb, or even two, assume that the only alternative was an Iwo Jima - style assault; somehow, they ignore dropping a bomb in a less-inhabited area (or on a base or fleet) as a demo. There's also the question of whether speed was required by those who feared giving Russia a chance to get involved.

There are some cases where we can make reasonable arguments that X prevented Y; in too many others, we can only guess until somebody invents a crosstime conveyor.</rant>

I have a confession to make. I got off work a tad early today (read: after only nine hours). I emailed myself all of the opinions sent down yesterday.

I had dinner, poured myself a glass of shiraz, and went outside to the deck to...play Harry Potter Uno with Rockgod and Puppy.

So my thoughts on the actual reasoning of the majority, concurring and dissenting opinions, for whatever they're worth, will have to wait. When I get to that (maybe the start of a law review article?) I will post a link to an open thread. I still think the actual content of the opinions is off-topic. I think the topic point is valid no matter what I think of the opinions: it's not good just because both sides got mad about it. I also think this, regardless of the outcome of the decisions: "split the baby" is not a good way to make constitutional law that will apply in other cases.

Although I'm strongly against endorsement of religion by any agent of the government, I also think it's reasonable for communities to express religious sentiment.

In other words, you think endorsement of religion is OK as long as we can point to a bunch of individuals standing right behind the government agent.

You can't get stupider decisions out of SCOTUS than things having to do with God or drugs. (This is why the classic of tortured reasoning, Employment Division v. Smith, has both.)

Jonathan, I would happily join you in a movement to encase microfiche or flashsticks containing all the Commandments in the walls of our civic buildings. Kind of like, oh, a mezuzah. Purely for historical purposes.

mythago: mazeltov!

[Mid-19th century. From modern Hebrew mazzāl tōv = "good star"]

I must admit that I, too, cannot see the difficulty about considering the likely effects of alternative decisions, especially with reference to the use of nuclear weapons on Japan. Perhaps theophylact would be kind enough to explain?

Here's a "split the baby" idea for the monument; allow it, but mandate the addition of a big ol' Star of David on it in the interest of putting it in historical context.

That'd get me to pop some popcorn and pull up a chair.

(Of course, the Star wasn't around at the time of Moses... but what the heck. It's not like this is a serious suggestion or anything.)

mythago:

You can't get stupider decisions out of SCOTUS than things having to do with God or drugs. (This is why the classic of tortured reasoning, Employment Division v. Smith, has both.)

I concur.

I have to agree with Dave Luckett on considering context in trying to understand the use of the A-bombs. When Truman made that decision, the fighting on Okinawa had been over less than a month; in addition to the military casualties on both sides, the civilian population of Okinawa suffered horrific losses (estimates of deaths among civilians range from 130,00 up to 500,000 for the period from April 1, 1945 through 1946) and continued to suffer throughout the winter of 1945-6 as a result of the destruction of virtually all infrastructure, including most of the housing. The firebombing of Tokyo resulted in 90,000 deaths in a single night, to give further context. I won't defend the use of the bombs, but I have to admit things may have looked very different to Truman in the summer of 1945 than they do to me, here in the summer of 2005, and that while I am in a position to know something about what was going on inside the Japanese government and high command, he wasn't, nor did he have much knowledge of the long-term effects of the release of atomic radiation in such quantity. The best that I can come up with is that all his choices were bad ones by then, and I'm damn glad I didn't have to be the one making the choice.

I would highly recommend George Feifer's book about the Battle of Okinawa, Tennozan, for those who are interested in adding to their knowledge of the period.

I wish people would make big granite carvings of the bill of rights, and put those up on courthouse lawns. Sigh.

Mary Dell: Me too, me too! When I'm rich, I shall commission such things and pepper the landscape with them.

(I should point out that I've been using that "when I'm rich" line for an awfully long time, and I'm not rich yet. There's not, like, impending richness that I'm waiting on, or anything. "If I'm ever rich" would be more accurate, but less hopeful.)

fidelio: Quite so. The old saw about hindsight having 20-20 vision, etc.

I admit to having a personal interest in the subject. My father once told me he was to have been given (my, what an interesting tense!) the honour of being in the first wave ashore if Operation Olympic had gone ahead. In that event, it seems quite likely that I would never have been born. But that's a contrafactual, too, I suppose.

Regarding fidelio's comment on Truman's decision,
Dave Luckett's comment about his father and the proposed Olympic landings, and the general discussion above about hypotheticals, contrafactuals, and alternate histories:

I don't know if they are used up yet, but, as late as the 1991 Gulf War, the Pentagon was still handing out the Purple Hearts that they had stockpiled for the 1945 invasion of Japan.

Paul Fussell's Thank God for the Bomb is pertinent here.

Here's a "split the baby" idea for the monument; allow it, but mandate the addition of a big ol' Star of David on it in the interest of putting it in historical context.

Better: post them in the original Hebrew.

mythago: Oooh, I *like* that one.

> Paul Fussell's 'Thank God for the Bomb'
> is pertinent here.

And Col. Jack D. Ripper, too.

> “everybody’s unhappy, so it must be fair”
> is magical thinking.

And yet it is possible to find a grain of truth to it too. I've been mulling this one for a bit now and I think I finally found a way to describe it.

What we think and what we say are a step removed from reality. "Fair" is something each of us say, but what is really fair is likely to be somewhere in between where everyone says it is.

The closest analogy I can think of is "tug of war", with a rope and several people on each end pulling in opposite directions. No one actually stands in the middle, but that's where "fair" is located in this analogy.

I suppose one interpretation of such an analogy is that "fair" then becomes "a law of averages" (position of each person on some scale added up and divided by total population), but that might be taking the analogy too literal.

The grain of truth is simply that no one individual likely holds a complete and whole definition of "fair" in their head and in their words. And so there is at least some unhappiness for each that reflects the difference between the reality of "fair" and where they stand/speak/think.

There seems to be an 'evolution' to this tug of war that drags everyone a little bit closer to the truth, though no one may ever stand directly upon it. We seem a lot closer to "fair" now than we were two centuries ago.

And despite my own urges to sometimes want to cut off the more radical fringes of the rope, I have a feeling that something like that might send everyone flying even further from the truth.

And then, even this definition of "fair" isn't going to be spot on. Some will likely rail against it wholeheartedly. but between the tug of war analogy and whatever alternative is given, 'reality', in my opinion, falls somewhere in between.

Patrick,

I like the "Hegel's bluff" link.
I assume it's in reference to this thread.

I think if someeone comes out and says
"Everyone's mad, I must be right",
and the response is simply "That's wrong",
then the person will generally hold onto
the grain of truth they know is underneath
their statement, that no one is 100% right,
and dismiss the "that's wrong" response.

The "Hegel's Bluff" approach, though,
actually reframes the idea and does a
pretty good job of blowing away the
"everyone's mad, I must be right" notion.

Then again, Hegel's Bluff basically
says one side is right and the other wrong,
but avoids the sticky details in attempting
to define what actually is right.

And regardless of who is right
and regardless of who is magically thinking,
in a democracy, everybody gets one vote.

So, there is still something to be said
for the 'evolution of rightness' idea.

In that vein, the Supreme Court can only
approach what is absolutely right as close
as the people will allow them. people elect
president/senators, president nominates judges,
senate confirms them, so judges reflect the
average "right" of the entire population.

That actually stands the
"everyone's mad, I must be right"
on it's head, because it actually
means that if everyone's mad at the
supreme court for their 10 commandment
decision, it probably means that they
ruled along the "average right",
which is completely unrelated to whereever
"absolute right" may be.

Perhaps the saying could be reframed
"everyone's mad, I must be average"

The "Hegel's Bluff" article is indeed correct that splitting the difference is no guarantee that the result will be fair... but also look at the variant where there is no one correct solution. In a situation where neither doctrine appeals, which am I to choose?

I choose neither. Dunno about anybody else.

Hewing to an extreme is fine; expecting others to hew to it is another matter entirely... and I despair that I live in a time that has seen the word "compromise" become perjorative and "extreme" laudatory. (And marketable, for that matter.)

> In a situation where neither doctrine appeals,
> which am I to choose?

I think there is something to be said for the
idea that you don't actually get to "choose",
per se. You were born into a tug-of-war, you
start wherever you were born, and you don't
actually get to "choose" where you stand,
you can only choose which direction you pull.

Splitting the Baby as Logical Fallacy in Optimization Theory and Hill-climbing Dept.:

If you are trying to climb the highest mountain, and there are two almost equally high peaks nearby, it is obvious foolishness to stand in the valley exactly halfway between them, and plant your flag.

See also:
Buridan's Ass
by Francine DuBois as aplied to Romance novels and Mystery fiction.

"The theory often referred to as "Buridan's ass" states that, when given the option of two equally wonderful piles of hay, the ass will starve to death because it cannot choose. This concept was first discussed in writing by Aristotle, but has been in existence long before it was documented in writing. However, it has unfortunately seemed to slip from use. Part of that burden can be placed on Sigmund Freud's head for his work with the instinct of life, that is, living beings innately strive to live. Buridan's ass suggests that this instinct can be overridden by stupidity and/or passivity...."

> given the option of two equally wonderful
> piles of hay, the ass will starve to death
> because it cannot choose

And I would say that the analogy cheats
because it presents two specific piles of hay.
There are no such convenient markers in life.
It is a bifurcation of a wide open and unmarked
field of life.

You can say "pile of hay" and "right", but
life doesn't come with such labels,
nor does it come with the command,
"choose or starve", and there is no donkey
to watch so we know when a lack of choice
results in starvation.

Fair is always a matter of reasonable accomodations. Watched C-span the other night, for once seeing our representatives and the milary representatives be reasonable and sane, as they had questions and answers on the whole Airforce Academy and annoying Evangelists problem.

Someone on the panel mentioned the case of a Jewish cadet who wanted to go to services not held on a Sunday. She got denied multiple times until finally getting permission, then after having got dressed and going downstairs, she ran into someone who told her to put her uniform back on because they had yet another activity. She never asked again.

The trouble with services and holy days, however, is that everybody has one, and unless you make a plan of personal leave days, it gets difficult, and even then, it's problematic. Plus, with the military, if you're wanting to have anything resembling unit cohesion, it's a good idea to have folk able to share the same activities.

Having the Ten Commandments monuments in Hebrew is amusing and I'm all for it.

The closest analogy I can think of is "tug of war", with a rope and several people on each end pulling in opposite directions. No one actually stands in the middle, but that's where "fair" is located in this analogy.

Most tug-of-wars I've heard of, the middle is where the pool of mud is located.

JVP got to invent an ass with two perfect piles of hay. But since hay is never perfect, I think it only fair that I should be able to invent a game of tug of war with "fair" in the middle, rather than a pool of mud.

I think Greg has an interesting point. And it is worth noting that the heuristic does work on many occasions: there are many instances where a decision that has upset both "sides" has been the "right one" (from some POV at least). And what, after all, is a heuristic, but a rule that sometimes works?

I think it works most frequently with cases like this because what we see presented to us are two very extreme opinions: those who believe that a religiously inspired monument is always a bad thing, and those who hold that preventing their display is in some way wrong.

Think about those opinions for a minute. Of course a decision that makes neither of these "sides" happy is the right one -- any other decision implies making an arbitrary and unjustified rule that ignores the specifics of the situation involved.

And for many other cases, we are presented by the media with a story of two "sides", opposing each other like this. It's as if the media only want to show us those who hold ridculously exaggerated opinions. Which is probably true: exaggerated opinions make better stories, after all. Even if you do have to search for a long time to find people who have those opinions.

So, given that we can expect the positions of people as presented to us by the media to be extreme, is it any wonder that we find the heuristic of "both sides unhappy => good result" being so useful?

Here are a few things I think:

"A Ten Commandments monument on the courthouse lawn violates the Establishment clause of the First Amendment of the Constitution of the United States of America," does not equal "A religiously inspired monument is always a bad thing."

Also:

"The United States Supreme Court should stop dithering around with what is essentially a doctrine of 'we know an Establishment of Religion when we see it' and come up with a proper analytical framework (which will necessarily be imperfect but will be better than what they have now), as is their job as interpreters of the Constitution who make law prospectively,"

is not the same as,

"All religious displays are unconstitutional and should be banned, and I'm really upset that they did not decide the way I wished they would."

Finally,

"It's not a good idea to just decide that a decision must be right because it pissed off both sides,"

is not the same as

"A decision that pisses off both sides is never right."

And now to sunshine and breezes and a day off.

Just reminded me of this fictional "good journalism" example: report on a political topic by having a debate between Adolf Hitler and Mahatma Gandhi. See, you've done your job as both sides of the spectrum are represented: you're neutral! Never mind that Hitler is a disgusting, murderous psychopath and Gandhi is a pacifist and a moral example... False equivalency, it's called too, right?

Spam here and there

Spam