"Divisiveness", Empiricism and the Development of Constitutional Doctrine.

In the recent decision on allowing some displays of the Decalogue on public property, but not others, the majority gestured at a concern that such displays could engender "religious divisiveness." Eugene Volokh at the Volokh Conspiracy mused that decisions like the one passed down on Monday may cause more divisiveness than the displays ever did. Fellow conspirator, Todd Zywicki, followed up with his own post that Monday's decision really constitutes cut-rate social engineering; no one has done any studies on the question. SCOTUS' claim that it is staving off "divisiveness" really reflect the gut instinct of 5 of the inside-the-beltway lawyers who happen to sit on the court.

Good points all around. I'm on record in the comments to the first post as saying that I've never been particularly offended by the public displays of religious sentiment, even though such expressions are invariably Protestant, and, recently, nondenominational Protestant. For example, invocations at Rotary lunches frequently end with "in Jesus' name we pray", particularly if the invocation is given by a nondenominational Protestant. One avoids "divisiveness" by accepting the good intentions of the speaker, understanding that the speaker's sectarian fillips belong to the speaker and, if necessary, mentally distancing oneself from the sectarian elements.

Habits of tolerance are not fostered by giving a "heckler's veto" to those with heightened sensitivities. We live in a country whose history is intertwined with religious usages. The Supreme Court opens with an invocation to God and meets in a courtroom that itself has a depiction of the 10 Commandments. Treating those innocuous symbols as poison sends a message to believers and secularists about the dangers of religious sentiment. A Supreme Court decision affirming that public art must show additional care in depicting the Decalogue is divisive because it tells believers that something about what they see as normal and positive is a danger to public order.

By the way, where does the concern about "divisiveness" go when the issue is teaching evolution to the children of people who would accept martyrdom in the name of a literal interpretation of the Bible? Understand for a moment that I'm not a creationist or a biblical literalist, but if the operative principle in constitutional interpretation is to avoid "divisiveness" shouldn't creationist get a similar veto over what public schools teach? (And on a related, but somewhat offbeat note, if local governments are ultimately omnicompetent in deciding what constitutes a governmental function pace Kelo, where does there competence go when the issue of determining the right amount of divisiveness in matters pertaining to school curriculum or moral legislation is the issue?)