The Ten Commandments Case

A few scattered thoughts:

1. Souter's majority opinion in McCreary striking down the display of the Ten Commandments makes a particular note of religion's "divisiveness":

Page 33: We are centuries away from the St. Bartholomew's Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.

At what point does "divisiveness" become a reason for the government not to do something? The Supreme Court's own decision is very likely to be "divisive" in and of itself. In fact, I'll bet that the Supreme Court decision is inestimably more divisive -- as it will be widely reported -- than was any Ten Commandments display in some obscure courthouse in Kentucky that hardly anyone ever saw.

2. Scalia's dissent points out that 97% of the American people believe in monotheism of some sort; the Founders were monotheistic, etc., etc. Souter responds in a very confused footnote:

There might, indeed, even have been some reservations about monotheism as the paradigm example. It is worth noting that the canonical biography of George Washington, the dissent's primary
exemplar of the monotheistic tradition, calls him a deist. J. Flexner, George Washington: Anguish and Farewell (1793?1799) 490 (1972) ("Washingon's religious belief was that of the enlightenment: deism").It would have been odd for the First Congress to propose an Amendment with Religion Clauses that took no account of the President's religion.

Huh? Souter appears to be saying that Washington was a deist rather than a monotheist. That is akin to saying that Washington couldn't have been a Virginian, because he was President. "Monotheism" simply means believing that there is ONE God, rather than zero or many. "Deism" is a form of "monotheism," which believes that the one God doesn't intervene in human affairs. (Souter may have been confused by the contrast between "deist" and "theist." But as far as I know, Souter is the first person to perceive a contradiction between "deist" and "monotheist.")

Anyway, Scalia cleared things up in his dissent:

The Court thinks it “surpris[ing]” and “truly remarkable” to believe that “the deity the Framers had in mind” (presumably in all the instances of invocation of the deity I have cited) “was the God of monotheism.” Ante, at 32. This reaction would be more comprehensible if the Court could suggest what other God (in the singular, and with a capital G) there is, other than “the God of monotheism.” This is not necessarily the Christian God (though if it were, one would expect Christ regularly to be invoked, which He is not); but it is inescapably the God of monotheism.