The Establishment Clause: A Case of "Constitutional Estoppel"?

If posting the 10 Commandments on government property favors religion, why should it matter for constitutional purposes whether the monument was erected yesterday, last year, 40 or 100 years ago?

In Van Orden v. Perry, the Supreme Court rejected an Establishment Clause challenge to a 10 Commandments monument situated on the grounds of the Texas state capitol. Among other relevant considerations, Justice Rehnquist cited the fact that Van Orden brought his challenge "forty years after the monument's erection and six years after [he] began to encounter the monument frequently."  Justice Breyer added in his concurrence that "40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner)," which to Breyer meant that the monument could not reasonably be understood to reflect religious favoritism.

More recently, a characteristically snide Justice Scalia, attempting to preempt the inevitable Establishment Clause challenge prompted by last week’s decision in Pleasant Grove v. Summum, said that the monument in that case "was erected in 1971, which means it is approaching its (momentous!) 40th anniversary." (Though I’m not sure Scalia thinks we still have an EC clause, so to him the monument’s age shouldn't’t matter).

Where does this rationale come from, and what does the level of religious "endorsement" have to do with the timing of a claim? It's comparing apples to toothpaste so far as I’m concerned, leaving thousands of aging but prominently displayed religious monuments immune from constitutional challenge.

And when, exactly, does this theory of "constitutional estoppel" as I’ll call it kick in? When the monument turns 40, 20, 15? In Van Orden, the six foot tall granite monolith was donated to the state in 1961. The petitioner filed suit forty years later in 2001, and 6 years after he first encountered the display on the capitol grounds. Had Van Orden filed suit on his first encounter in 1995, the monument still would have been 34 years old. Would that have made a difference?

Certainly 6 years can’t be the dividing line between a constitutional acknowledgment and unconstitutional endorsement, so are we to overlook the trappings of sectarian favoritism that accompany all but the most recent displays? This would make a nullity of the Establishment Clause by ceding the right of enforcement to a prior generation.

-Kathleen A. Bergin

Comments

[Michael Alexander]

What is wrong for picking an arbitrary number and attaching constitutional meaning? I think 25 years should be the anniversary that forecloses a constitutional challenge. See Grutter v. Bollinger, 539 U.S. 306 (2003)(opinion of O'Connor, J.)("We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.").

[Kathleen Bergin]

O'Connor was making a pragmatic prediction: that society will have progressed to a point where diversity will have been achieved voluntarily, or through race-neutral means, such that race-based measures are no longer needed. In other words, its a change in actual future facts and circumstances that changes the constitutional equation.

I think EC claims are different. Forty years may have passed, but does nothing to dilute the message created by the placement, context, origin, etc. of a public religious display.

[Michael Alexander]

If you live by the sword, you have to die by the sword. If you think the meaning of the law can change over time, and it is up to a judge to determine the meaning of the law according to actual facts and circumstances - then you also have to believe the meaning of an inanimate object can change over time, and it can be up to a judge to determine the meaning of the object according to facts and circumstances. At a minimum I think you have to give up one of your two beliefs - either the affirmative action cases were wrongly decided, or the religious displays that have been around for a long time (and shifted meaning from a purely religous meaning) are allowed.

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