The Breyer "Divisiveness Test"

June 27, 2005

Prior cases examining the Establishment Clause have focused on the debate between Justice O'Connor's "endorsement test" which holds invalid government actions if a reasonable observer would conclude that they constitute endorsement of a religion, and Justice Kennedy's "coercion test" which bars the government from compelling people to support or participate in religion. Justice Breyer, who provided the swing vote in today's Ten Commandments cases, seems to have thrown a new wrench into the works:

[I]n reaching the conclusion that the Texas display falls on the permissible side of the constitutional line, I rely less upon a literal application of any particular test than upon consideration of the basic purposes of the First Amendment's Religion Clauses themselves. This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderlinecase such as this one.

At the same time, to reach a contrary conclusion here, based primarily upon on the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.

While Breyer's "divisiveness test" is not entirely without pedegree, it adds yet another layer of complexity to the Court's already convoluted Establishment Clause jurisprudence.