Patterico's Pontifications

6/27/2005

I Know It When I See It

Filed under: Civil Liberties,Court Decisions,Humor — Patterico @ 9:25 pm



Eugene Volokh notes that Establishment Clause jurisprudence has, in the eyes of some, become a Potter Stewart-style ad hoc “I know it when I see it” test.

Which gave me an idea.

Everywhere that a potentially unconstitutional depiction of the Ten Commandments is displayed, public officials should construct a nearby depiction of two people engaged in the most explicit sexual acts their hired artists’ imaginations can muster.

When someone files suit against the Ten Commandments display, officials should find a shill to file suit against the sexually explicit display, as running afoul of obscenity laws.

Then watch the fun as the courts strike down the Ten Commandments display, even as they uphold the depiction of explicit sexual activity as expression protected by the First Amendment.

It’ll never happen, but it should.

13 Responses to “I Know It When I See It”

  1. Did anyone mention to the court that the 10 forbidden Commandments deal with murder, adultry, lusting after ass? They may have found a First Amendment protection in there somewhere.

    EagleSpeak (0d84c2)

  2. I think future supreme court nominees should be litmus tested for their belief in the cheap stunt school of jurisprudence.

    actus (3be069)

  3. Maybe the courthouses should illustrate the commandments, with pictorial examples of what is forbidden? Surely that would be protected.

    holmegm (1435de)

  4. “Maybe the courthouses should illustrate the commandments, with pictorial examples of what is forbidden? Surely that would be protected.”

    That would get you 3, maybe 4 commandements.

    actus (cd484e)

  5. >That would get you 3, maybe 4 commandements.

    Well, maybe that would be enough for “secular purpose” 😉

    holmegm (1435de)

  6. If the “no looney objects” standard is now to drive the issue, perhaps we need to revisit all the NEA art projects defiling religion. Or are religious people too looney to qualify?

    Kevin Murphy (6a7945)

  7. “If the “no looney objects” standard is now to drive the issue, perhaps we need to revisit all the NEA art projects defiling religion.”

    Probably not. because the objection is not that a religion is being defiled, but that a religion is being established.

    actus (cd484e)

  8. That’s not what the establishment clause says. It says nothing about laws “establishing” an establishment of religion, only about laws “respecting” them. But I suppose you are right in the sense that the First Amendment says nothing about Congress making a law disrespecting a establishment of religion. Maybe they should test that theory by passing a law establishing “Anything But Islam” as the official religion of the United States of America.

    Xrlq (ffb240)

  9. “That’s not what the establishment clause says. It says nothing about laws “establishing” an establishment of religion, only about laws “respecting” them.”

    respecting the establishment.

    “Maybe they should test that theory by passing a law establishing “Anything But Islam” as the official religion of the United States of America.”

    On its face, looks like its establishing. But there’s also free excercise problems too.

    actus (cd484e)

  10. Not really. Islam is an establishment of religion, but “anything but Islam” isn’t. Of course, the real meaning of “respecting” in this context is “about” or “with respect to,” and not “respect” as in the opposite of “disrespect.”

    Free exercise? Nah. There is no establishment clause for politics, so government “speaks” on that topic all the time, usually without impacting individuals’ ability to speak freely at all. If Congress passed a law declaring the Episcopalian Church to be the official Church of America, but attached no consequences to that status, there’d be a clear violation of the Establishment Clause, but not necessarily any impact on free exercise.

    Xrlq (ffb240)

  11. “but not necessarily any impact on free exercise.”

    Well I was imaginign that “official” meant something.

    actus (3be069)

  12. If the “no looney objects” standard is now to drive the issue, perhaps we need to revisit all the NEA art projects defiling religion. Or are religious people too looney to qualify?

    Diana (05fc4a)


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