I only had time to glance at the opinions, but the cases seemed to turn very much on the context of the display. The Kentucky displays appeared initially by themselves I guess and pretty much exhibited a religious purpose, even though later attempts were made to dilute the religious purpose. The Texas display, on the other hand, co-existed with 17 other historical markers and 21 other monuments.

Scalia's dissent in McCreary County is, of course, the must-read among all of the published opinions from these two cases. He advocates his brand of originalism and presents a three-pronged attack on the majority by arguing 1) that the Lemon test should be abandoned; 2) that Lemon has been expanded inappropriately to bar not only things with solely a religious purpose but also a primarily religious purpose; and 3) that the counties' displays didn't violate even the expanded version of the disfavored Lemon test.

My only criticism of the dissent after a first read is in the way he treats the display itself, which was the last of several attempts to display the Ten Commandments (each getting progressively closer to an appearance of a secular purpose). Scalia doesn't even mention the earlier displays, which hints that he believes those displays to be irrelevant to an analysis of this issue. It may be irrelevant to analysis that discounts the Lemon test in its entirety, but as Scalia purports to do a Lemon analysis, the context, purpose, and effect of the display are all relevant to an analysis under the loosened test used by the majority, and the fact that the display had earlier, more egregious incarnations certainly is probative of the context of the display, the purpose of erecting the display, and the effect on a viewer who knew of the earlier displays. Scalia makes an unexpected misstep by hitting us with all of his arguments instead of sticking with the ones that are his strongest (such as, Lemon is a joke and Stevens' criticism of his originalist replacement for Lemon is misplaced).

Scalia really dislikes the Lemon test, as I recall. I seem to remember a dissent of his from circa 1995 involving religion in a school setting (I think) where Scalia compares the Lemon test to a zombie that never seems to quite die and keeps coming back to scare courts and small children. (Or something like that.)

Even though I am a conservative Christian, I'm fairly uninterested in whether or not courthouses have religious iconography in them. Yes, I recognize that the 10Cs are part of the history of law, but it's not like they are codified in our current law or respect by our current lawgivers. There is certainly no penalty any more for disrespecting God, your parents, your wife, your neighbor's wife, or yourself.

If the courts dont want Moses hanging out by himself in the courthouse, fine. But instead of destroying these beautiful works of art, why don't we donate them to a local church. Since the modern church is almost always devoid of beautiful art, we can solve two problems with one flatbed truck. Besides, christians will appreciate a 10C display much more than some scummy lawyer trying to keep a rapist out of jail or some moronic jury who can't rub enough brain cells together between the 12 of them to see through his BS.

Otherwise, cities and counties need to just bite the bullet and sculpt Moses and Hammurabi arm in arm, the original Odd Couple.

Right on, Doug, and Scalia tracked other justices' disapprovals of Lemon in his dissent, including a choice quote from Stevens describing Lemon as having a "blurred, indistinct, and variable barrier." This played right into Scalia's argument that the Court applies Lemon so haphazardly that it has lost all credibility. He found 6 justices who had discredited Lemon at one point or another, "including at least one Member of today's majority" [Stevens].

The commentary re Lemon that Doug mentions is my favorite legal passage of all time. It's from Lamb's Chapel back in 1993. Scalia's quote:

"Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District."

I studied federal courts, Constitutional law, and the Establishment Clause, under three different professors in law school. Only one of them could answer the question "Is Lemon good law" in less than half an hour. His answer was to never apply it. Though, buried beneath that response was a much longer response he avoided by giving the short response.

Today's opinions are a perfect example of the labyrinthine treatment Lemon gets.

Adam-

I found Scalia's dissent one of his weakest. He's certainly correct, as he has been since at least 1993, that the Lemon test is unevenly applied even by those who advocate it. But his analysis beyond that is quite weak, in my opinion. I've already written an analysis of part of his dissent, which I plan to post tomorrow (I've posted far too much on this case for one day already). I'll look forward to hearing your comments. Have you seen Jack Balkin's critique of his dissent? I think he points out an important inconsistency in Scalia's dissent, though not the one I will focus on tomorrow.

My initial reaction to Prof. Balkin is that he believes to be coercive, or at least marginalizing, the permission of certain religious action/documents/etc. when the permission is based on historical value.

I think Balkin's argument puts words into Scalia's mouth by assuming that he would find differently a case involving a document from a minority religion that happened to be influential on our nation's founding. This is a bit of an academic dreamworld, because no such document exists, but I think Scalia would rule the same way in such a case. He would have to use different examples and statistics, obviously, but the document would be permitted under Scalia's originalist framework as long as it has some historical purpose. I need some more time to digest Balkin's thoughts, but Jack Garnett posted a short response on SCOTUSblog that I can agree with for now (as the easy way out of doing heavy lifting at the end of the work day).

Balkin's commentary dissects a key portion of Scalia's originalism argument. Scalia uses a number of heavy-duty quotations from the Washington era as evidence that the Establishment Clause surely didn't (and, thus, doesn't) bar references to God or favor religion over non-religion in public displays.

I don't share Balkin's view that Scalia has created two classes of citizens, and I think his viewpoint oversimplifies the religion clauses by squeezing all action or text that has some religious meaning into the box of government endorsement of the religious meaning. Some people will associate the 10C with their religious meaning, but because they played a role in our country's founding documents, proclamations, and actions, they are appropriately displayed in that context.

Scalia's discussion of monotheistic religions being the majority distracts Prof. Balkin from the main point; the historical role of the 10C passes them through an Establishment Clause analysis whether they are displayed in a courthouse hallway or on a government lawn, (Scalia doesn't say this) as long as they are displayed within that historical context. I don't think Scalia would expand his ruling to allow the 10C to be used in an evangelical manner.