June 28, 2005, 8:00 a.m.
Supreme Commandment
No divisiveness.

By Richard W. Garnett

The bottom-line results in the Supreme Court’s two Ten Commandments cases came as no surprise to Court watchers and commentators: In two 5-4 decisions, different majorities of the justices concluded that a framed display of the Ten Commandments in a Kentucky courthouse was unconstitutional but allowed a stone monument, featuring the Ten Commandments, on the grounds surrounding the Texas state capitol.

The Kentucky case, McCreary County v. ACLU, involved the display of “a version of the Ten Commandments on the walls of [two counties’] courthouses.” Writing for the majority, Justice David Souter looked closely at the “evolution” of, and multiple modifications to, the display — for example, the addition of the Declaration of Independence, the Preamble to the Kentucky Constitution, the Magna Carta, and the Mayflower Compact — and concluded that its history revealed a “purpose” on the counties’ part of advancing and endorsing religion. Justice Souter emphasized that the “touchstone” in religion-clause cases is “neutrality,” and insisted that when the “government acts with the ostensible and predominant purpose of advancing religion” — as it had, according to Justice Souter, in this case — “it violates that central Establishment Clause value[.]” At the same time, he took care to reject the suggestion that “a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history.” After all, he noted, Moses himself is portrayed, holding the Ten Commandments, on the frieze of the justices’ own courtroom.

Justice Scalia authored the dissent in McCreary. He opened not with a recitation of the facts of the case, or with a litany of relevant precedents, but with a personal and striking account of his recollections of September 11, 2001, and of President Bush’s presidential address on that day, which closed with the prayer, “God bless America.” Remembering that prayer, he emphasized that the strict-secularist model of church-state relations, in which “[r]eligion is to be strictly excluded from the public forum, . . . is not, and never was, the model adopted by America.” He also criticized, in strong terms, the majority for failing to ground its ruling in “consistently applied principle.” After all, it is principle that “prevents judges from ruling now this way, now that — thumbs up or thumbs down — as their personal preferences dictate.”

In Van Orden v. Perry, a different 5-4 majority (Justice Breyer switched sides) announced that the Texas display — a six-feet-high stone monolith inscribed with the Ten Commandments — did not illegally endorse or advance religion. In what could turn out to be the final opinion of his distinguished service on the Court, Chief Justice Rehnquist explained, in typically succinct fashion, that the relevant precedents, “Januslike, point in two directions . . . . One face looks toward the strong role played by religion and religious traditions throughout our Nation’s history. . . . The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.” After admitting that the “Lemon test” is “not useful” in dealing with “passive” public displays, the chief justice concluded that the Texas monument is better regarded as a permissible acknowledgment of faith and its role than as an objectionable or coercive establishment of religion.

Breyer's Choice

But because only three of his colleagues joined the chief justice’s opinion, the decisive and crucial analysis was provided by Justice Breyer. For him, the task of the Court was not the “precise application” of a “simple and clear measure,” but rather to decide in accord with the “basic purposes” of the religion clause, namely, to “assure the fullest possible scope of religious liberty and tolerance for all” and to “avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.” He characterized the Texas monument as presenting a “fact-intensive” and “difficult borderline case” and concluded that, all things considered, “as a practical matter of degree this display is unlikely to prove divisive.” And, he warned that “to reach a contrary conclusion here, based primarily upon the religious nature of the tablets would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions.”

These two cases were among the most closely watched cases of the Court’s just-completed term, and they touch on matters at the heart of our long-running public conversations about the place of religion in civil society and public life and of our so-called “culture wars.” Still, the question needs to be asked about the Court’s latest decree on public religious symbols: “So what?”

On the one hand, these two rulings are just more of the same: The permissibility of government action touching on religion depends today, as it has for several decades, on whether one or two “swing” justices think it crosses the undefined — and perhaps undefinable — line between permissible acknowledgments and impermissible endorsements of religion. Once again, the justices both invoked and downplayed the famous “Lemon test,” under which official policies and programs must have a “secular purpose” and neither “advance” religion nor “excessively entangle” the institutions of government with religion and churches. And, once again, litigants and law students are told that, when it comes to public displays of religion, no single “test” controls, no one factor is decisive, and no confidence is warranted about the outcome of the next case.

Lemonade

On the other hand, there are several developments and statements that are worth noting, and that could prove significant. First, both Justices Souter and O’Connor — even as they voted against the Kentucky display of the Ten Commandments — seemed to take pains to emphasize that the animating value of our religion clause is not hostility or indifference to religion, but religious liberty. Now, it seems that — as Justice Clarence Thomas argued in his separate opinion — that these justices are incorrect in their belief that public displays of religious symbols and acknowledgments of religious traditions infringe upon, or even implicate, the freedom of religion. Nevertheless, the recognition that the First Amendment exists and should be interpreted and applied in the service of religious freedom, and not to marginalize religious believers, is welcome.

Second, as was just noted, Justice Thomas continued his often lonely but always clear and respectful campaign of reminding his colleagues, and all of us, how far the Court’s doctrines have moved from the original meaning of the Religion Clause. Simply put, an “establishment” of religion involves actual coercion or forced financial support. And, “government practices that have nothing to do with creating and maintaining . . . coercive state establishments” — such as, for example, erecting stone monuments displaying the Ten Commandments — “simply do not implicate the possible liberty interest of being free from coercive state establishments.”

Third, it is noteworthy that Chief Justice Rehnquist, in his opinion upholding the Texas display, did not take the tempting, but ultimately unsafe, path of pretending that the Ten Commandments display was not really religious, and therefore constitutionally unobjectionable. No, the Texas display is constitutional, but not because it is really secular, or its meaning trivial, but because, in fact, the Establishment Clause permits governments to acknowledge and to accommodate religion. As Justice Thomas put it, to pretend that the Ten Commandments — or, the words “under God” in the Pledge of Allegiance — has no religious meaning is to “contradict[] what [religious believers] know to be true.” “Words like ‘God’,” he insisted, “are not vulgarities for which the shock value diminishes with each successive utterance.”

Finally, and perhaps most important, there is the emphasis in Justice Breyer’s opinion on the fact, or the possibility, of “social conflict” and political division along religious lines. In recent years, the notion that “divisiveness” associated with religion and religious expression is relevant to the constitutionality of government policies has enjoyed — particularly in Justice Breyer’s work — something of a comeback. It is not clear, though, why disagreement and contentiousness, even if unsettling, should be regarded as a signal that something has gone awry, constitutionally speaking. The presence of “divisiveness” would seem to signal not an unconstitutional establishment of religion but the exercise of constitutionally protected freedoms and pluralism. As John Courtney Murray once put it, “pluralism [is] the native condition of American society” and the unity toward which Americans have aspired — e pluribus unum — is the “unity of a limited order.” Those who crafted our Constitution believed that both authentic freedom and effective government could both be secured through checks and balances, rather than standardization; and by harnessing, rather than homogenizing, the messiness of democracy. Accordingly — on this side of heaven, anyway — we should, in Murray’s words, “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity.”

— Richard W. Garnett is an associate professor at Notre Dame's law school.

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