Wednesday, March 12, 2003
that elusive question of motive
One of the deeply perplexing questions that comes up in constitutional law from time to time is the question of motive: what was the subjective reason why a certain law was adopted? The question is relevant in many religious rights cases, such as the case a few years ago about a municipal ordinance forbidding animal sacrifice (in which the Supreme Court struck down the law because the law's very purpose was to suppress a certain religious activity, despite the city's argument that the law was neutral on its face). So what can we discern about the bill passed yesterday by the Alabama House of Representatives, which would hold a referendum on a proposed amendment to the State Constitution providing that the state, and local governments and school boards, may post the Ten Commandments? One argument is that the motive for that -- as a matter of law, a conclusive presumption so to speak -- is religious rather than secular. See Stone v. Graham (striking down Kentucky law requiring the posting of the Ten Commandments in schools, despite the State's contention that the motive was a secular one). And that argument rings true to me -- though I do have to wonder whether there might actually have been an arguably secular purpose to this particular bill. What's so special about this bill that causes me to say that? It's Section 4, which provides in its entirety "Following the ratification of this amendment to the Constitution of the State of Alabama, this amendment shall be known and cited as the 'DuWayne Bridges Amendment.'" Does blowing one's own horn, and seeking publicity, count as a permissible secular legislative purpose?
[FURTHER THOUGHT: To be serious for a moment, I actually don't think that this amendment to the Alabama Constitution, if adopted, would violate the U.S. Constitution; the reason is that, as I read it, this amendment does not actually call for the posting of the Ten Commandments, but instead simply provides that the Alabama Constitution itself would not forbid such posting. That's all academic for now, I think, under Stone v. Graham, supra, because the U.S. Constitution would forbid it. But I do think that Section 4 of the bill, as quoted above, is remarkably transparent political grandstanding through religion.
posted by sam 12:28 PM