Ten Commandments and Grokster

by   |  06.30.05  |  Current Events

O.K. My final Supreme Court picks were only slightly off the mark. The court split on the Ten Commandments – they can be on government property but can’t stand alone inside government facilities. I should have guessed it right.

The existing test for violation of the First Amendment’s Establishment clause is the Lemon test and asks whether the government action has 1. a secular legislative purpose, 2. a primary effect that neither advances nor inhibits religion and 3. creates no excessive entanglement between religion and government.

But O’Connor, who swung the court in these two cases, essentially would rather scrap the Lemon test for an “appearance for endorsement” test. It seems like she did that here.

The Grokster case didn’t surprise me but I didn’t expect a unanimous decision because several of the justices are blasé about property rights.

In fact, considering the Kelo holding, which essentially said the government could take property away from someone to give it to someone else who’ll put it to better use, I’m surprised Grokster didn’t go the other way. I mean all the musicians are going to do with their music is play it and put it on greatest hits albums. The public will put downloaded songs on iPods and workout or put together party mixes that entertain groups of friends. Surely that’s an important public purpose…