Public Display of SC Confusion

The U.S. Supreme Court has become truly unmatched in its ability to displease everyone, and the recent dual decisions regarding religious displays in public places are a vivid example of this phenomenon.

AP reports that the U.S. Supreme Court has decided that displays of the Ten Commandments in and around public buildings are sometimes constitutional and sometimes not. The Court declared, in two separate decisions, that such displays are not inherently unconstitutional but can sometimes go over the line into endorsement of religion. The latter, the Court ruled, is not permitted.

Clearly the Court had a very difficult time establishing that the Constitution permitted some displays, such as its own courtroom frieze and various inscriptions on the nation's currency, while forbidding others.

Justice Antonin Scalia, in a barbed dissent against the Court's decision to disallow the hanging of framed copies of the Commandments in two Kentucky courthouses, saw an egregious inconsistency: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle."

The central question, the Court concluded, was whether a particular display constituted an endorsement of religion. Interestingly, Justices on both sides of the issue agreed that such displays are inherently religious, not just historical, thereby rejecting the arguments of many defenders of the displays. Chief Justice Rehnquist wrote, in the majority decision in the Texas case allowing a display outside a courthouse, "Of course, the Ten Commandments are religious — they were so viewed at their inception and so remain. The monument therefore has religious significance."

In his dissent in the Texas decision, Justice John Paul Stevens concurred with Rehnquist's assessment of the religious content of the display, noting that the monument proclaims 'I AM the LORD thy God,' in large letters. Stevens interprets the meaning of the display as follows: "The sole function of the monument on the grounds of Texas' State Capitol is to display the full text of one version of the Ten Commandments." However, Stevens parts company with the Rehnquist majority by concluding, "The message transmitted by Texas' chosen display is quite plain: This state endorses the divine code of the Judeo-Christian God."

I agree with Stevens in that assessment: the displays do suggest that the government of the State of Texas accepts the Ten Commandments as a divinely inspired truth. Really, that much should be fairly obvious. Such displays do also include historical and perhaps artistic aspects, but the religious on is surely paramount. In addition, I would suggest that these displays often express a more general public commitment to the God of the Bible.

Hence, I would agree that the Court is correct to hold that some such displays do constitute an endorsement of religion, and specifically of the Judeo-Christian religious tradition.

Where the majority of the Court is wrong, in the view of many constitutional scholars and a large minority on the Court itself (and this author), is in ruling that endorsement of religion in general, or even specifically of Christianity, is unconstitutional. The Establishment Clause of the First Amendment was clearly intended solely to prevent the establishment of an official national church as was the custom in most European nations. The idea behind it was to keep religion strong in the nation by allowing and indeed encouraging free play among religious groups. Consequently, the modern notion that the Establishment Clause requires government to be neutral between religion and irreligion goes against the letter, intent, and spirit of the clause. In fact, it turns the clause on its head and uses it to push religion out of the public square, the very opposite of its intended purpose.

Justice Rehnquist came close to expressing this doctrine in the Texas decision:"Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause," Rehnquist wrote. I would go farther and state explicitly that even endorsing Christianity itself is entirely within the bounds of constitutionality, as the history of the nation at the time of the adoption of the Bill of Rights and afterward amply confirms.

The two religious-display decisions handed down today confirm that the current condition of Supreme Court thinking on the Establishment Clause is something of a mess. Justice Clarence Thomas alluded to this in a separate opinion on the Texas case:

"While the court correctly rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order," Thomas wrote.

That is probably the one thing on which both sides can agree.