Secular purpose -Reply

[Mark Tushnet]

On the "no plausible secular purpose" requirement:  How
does it apply to the mandated posting of the Ten
Commandments in Stone v. Graham?  (Justice Rehnquist
said that it had--or could have had--the [plausible?] secular
purpose of reminding students that "the Ten
COmmandments have had a significant secular impact on
the development of secular legal codes.")  To Judge Moore's
posting of the Ten Commandments in his courtroom?  (Does
it matter to the analysis that Judge Moore apparently made
some public statements asserting that his subjective
motivation was religious?  Note that relying on subjective
motivation here may not be subject to the same objections
that Justice Scalia raised in Aguillard, because we are
dealing with a single decision-maker.  And recall the recent
thread about the 10th Circuit "school band" case.)

Mark Tushnet
Georgetown University Law Center
600 New Jersey Ave. NW
Washington, DC  20001
     202-662-9106
     (fax) 202-662-9497
tushnet at law.georgetown.edu