The Ten Commandments Mish-Mosh: The Supreme Court finesses the Decalogue

...Accordingly, he announced, because of the fact that here the religious message of the Commandments was mingled with the historical and secular aspects of the other displays on the capitol grounds, and because the Decalogue monolith had stood unchallenged for 40 years, this copy of the Ten Commandments was on the "permissible side of the Constitutional line...

...Franklin Foer, The New York Times Book Review "An extraordinary book .. . A window on a mind—and a nation...

...II, § 1, cl...

...Justice Breyer believed the Texas display was fine, but the Kentucky ones were not, and, casting the deciding vote in both cases, his views prevailed...

...Supporting his holding, Souter referred to three prior Supreme Court decisions that had made clear that the establishment clause "mandates governmental neutrality between religion and religion, and between religion and nonreligion...

...Carol des Lauriers Cieri, The Christian Science Monitor OCTOBER 2005 THE AMERICAN SPECTATOR 17...

...An Austin resident brought suit to remove the monolith on the grounds that it violated the establishment clause and that he found it offensive on his frequent visits to the state capitol...

...Perhaps emboldened by successes such as those against Justice Moore, the forces for strict separation of church and state in America, and the American Civil Liberties Union (ACLU) in particular, have vigorously been battling for a thoroughly secular public square, and have been seeking to eradicate the virtually ubiquitous representations of the Ten Commandments from our classrooms, courtrooms, and civic centers...

...Justice Breyer, for all his legal tergiversations, probably understands that, and hence his result upholding the Decalogue on the Texas monolith...

...Those four rejected the Lemon test as inappropriate, and grounded their opinion on the broader (and historically accurate) proposition that "From at least 1789, there has been an unbroken history of official acknowledgment by all three branches of government of religion's role in American life," and that the Texas display properly fit within that tradition...

...Other documents included were the lyrics of "The Star Spangled Banner" and the text of the Declaration of Independence, and these were also 14 THE AMERICAN SPECTATOR OCTOBER 2005 STEPHEN B. PRESSER accompanied by statements about their historical and legal significance...

...Justice Souter decided that given the original purposes of the counties in posting the original Commandments, their subsequent augmentation by other documents and purportedly secular purposes was a "sham," and all three Lemon tests were failed...

...Texas had accepted the monument from the Fraternal Order of Eagles, and had selected the capitol site for it...

...This act of judicial legerdemain, called the "incorporation" doctrine, and dictating that certain fundamental prohibitions against the federal government in the first ten Amendments to the Constitution should also be extended to prohibit acts of state and local government, is one of the great constitutional usurpations of the modern era, but now goes virtually unchallenged...

...nor deny to any person within its jurisdiction the equal protection of the laws," somehow changed the meaning of the First Amendment so that "Congress" ought to be interpreted as meaning "Any state or local governmental official...

...What Justice Thomas's concurrence in the Texas case demonstrates, however, is that a jurisprudence of original understanding, one which would leave decisions of how much religion to permit Texas has treated her capitol grounds monuments as representing several strands in the State's political and legal history...

...Breyer indicated that his reading of the cases meant that "the government must avoid excessive interference with, or promotion of, religion," but "the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious...

...America's Church-State Problem— and What We Should Do About It "Indispensable . For its history alone, this book should be read by all interested in today's church-state debates...

...Original understanding can't clear up everything in constitutional law, but if the court were more committed to interpreting the Constitution rather than social planning for the Republic, it might well diminish the number of 5-4 decisions rendered on important public issues...

...1 N THE TEXAS CASE, Van Orden v. Perry, the Ten Commandments were inscribed on a six-foot monolith that stood among the 21 historical markers and 17 monuments surrounding the Texas state capitol...

...Every now and then a state functionary, such as former Alabama Supreme Court justice Roy Moore, will remind us that our tradition was actually that religion was supposed to supply a foundation for our polities, but when Justice Moore placed a granite monument including the Ten Commandments in the rotunda of the State Supreme Court, and ignored a federal court order to remove it, he was ousted from office...

...Instead of removing the Commandments, the counties then ordered that the courtroom displays be augmented with eight other smaller documents reflecting the influence of religion on American government, such as, for example, the passage in the Declaration of Independence that ascribes basic human rights to endowment by our Creator, and a previous acknowledgment by Kentucky's legislature that Christ was "the prince of ethics...

...Come fh rimmil r Com ana en s Mis -Nos The Supreme Court finesses the Decalogue...

...Be that as it may, not since the attempt by then Attorney General Edwin Meese, early in Ronald Reagan's second term, has any official publicly attacked the "incorporation" doctrine...

...Still, in the early 20th century, the Court began to declare that the Fourteenth Amendment to the Constitution, which provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...

...Embracing a jurisprudence pursuant to which the Supreme Court functioned as judges rather than ephors would be even better...

...The two other dissenters, O'Connor and Souter, essentially argued that "the Ten Commandments constitute a religious statement._ their message is inherently religious, and...

...vOUR JUSTICES DISSENTED...

...When the smoke cleared on the two Ten Commandments cases, the Court had held that the Commandments had to be removed from Kentucky courtrooms, but it was perfectly permissible for them to exist on a monolith outside the Texas Legislature...

...A review of the two cases illuminates the sad state of establishment clause jurisprudence in particular, and the general arbitrariness of a majority of the justices...

...Our coinage bears the motto 'IN GOD WE TRUST.' And our Pledge of Allegiance contains the acknowledgment that we are a Nation 'under God.– Stating the obvious to all but a few Supreme Court Justices, quoting an earlier decision, Scalia "Our coinage bears the motto `IN GOD WE TRUST.' And our Pledge of Allegiance contains the acknowledgment that we are a Nation 'under God...

...In such cases, he explained, "I see no test-related substitute for the exercise of legal judgment...

...And, if one thought that, one would be correct, since the First Amendment was passed, in 1791, to prevent the federal government from interfering with the three state-established churches (in Massachusetts, Connecticut, and Virginia) and with the many states which then imposed some kind of religious tests for service in their legislatures or for exercise of the franchise...

...In an opinion written by Chief Justice Rehnquist, and joined in by Scalia, Kennedy, and Thomas, the OCTOBER 2005 THE AMERICAN SPECTATOR 15 THE TEN COMMANDMENTS MISH-MOSH four Justices agreed...

...IN THE KENTUCKY CASE, McCreary County v. ACLU, two Kentucky counties had ordered that copies of the Decalogue be posted in their courtrooms...

...The clearest message, conveyed perhaps inadvertently by Justice Breyer, is the arbitrary nature of the Court's decisions under the establishment clause, at least when the Lemon test is employed...

...The four-person plurality opinion also indicated that "Texas has treated her capitol grounds monuments as representing several strands in the State's political and legal history...

...For Scalia, even under Lemon, it could be said that "On its face, the [Kentucky] Foundations Displays manifested the purely secular purpose that the Counties asserted...

...In each case Justices Stevens, Soutei...

...BY STEPHEN B. PRESSER 12 THE AMERICAN SPECTATOR OCTOBER 2005 ALOT OF STRANGE STUFF HAS BEEN COMING from the United States Supreme Court lately, but for sheer incoherence nothing beats the Court's "establishment clause" jurisprudence...

...The federal courts were unimpressed, and both the District court and the Sixth Circuit Court of Appeals upheld the ACLU's attempt to get rid of the Ten Commandments in the display on the ground that the only purpose their inclusion served was a religious one...

...1/4 Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law and the legal affairs editor of Chronicles: A Magazine of American Culture...

...If push came to shove for those two, their views on religion would not have been regarded as trumping their views on states' rights...

...Eschewing an "absolutism" which would be "inconsistent with our national traditions," and claiming that there was "no single mechanical formula that can accurately draw the constitutional line in every case," Breyer suggested that this was one of those inevitable "difficult borderline cases...

...Virtually tossing aside all doctrinal niceties, Breyer declined to join in the reasoning of Rehnquist's opinion, and, quoting a nonconformist Justice beloved at Harvard in the '60s, John Marshall Harlan, stated that "there is 'no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible,'" in establishment clause jurisprudence...

...Justice Thomas added, in a remarkably candid opinion of his own, that the Court had been wrong ever to incorporate the First Amendment against the states, an acknowledgment as rare among Justices as it is indisputable as a matter of history...

...According to Lemon, in order for governmental action to survive an establishment clause challenge (1) it must have a secular purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster "an excessive government entanglement with religion...

...8, of the Constitution, the concluding words "so help me God," and the Supreme Court under John Marshall's opening its sessions with the prayer, "God save the United States and this Honorable Court" (a practice which still continues), and ending with his observations that "Invocation of the Almighty by our public figures, at all levels of government, remains commonplace...

...Perhaps he perceives that for the Court to have gone too far in removing religion from the public square would have made the Court even more of a political embarrassment than it already was, and might have severely undermined its authority as a purportedly objective organ of government...

...J. Dionne Jr., The Washington Post Book World (cover review) Hardly any other thinkers are expending mental energy trying to devise road maps for cultural peace...

...STEPHEN B. PRESSER in the public square to state and local governments, would remove the Supreme Court's difficulties in this area, and make honest men and women out of the Justices...

...The Supreme Court's majority of five agreed, in an opinion written by Justice David Souter...

...Breyer was my professor at Harvard Law, was something of a hardheaded realist then, and remains one now...

...weening federal government...

...So does the framers' notion, often expressed in the Grand Jury charges of some of the early federal judges, that there can be no order without law, no law without morality, and no morality without religion...

...A federal trial court, responding to the ACLU's request, then issued an order banning the displays, on the grounds that they were an impermissible touting of the Christian religion, without a valid secular purpose...

...That was the original plan of the Constitution's framers, and it still makes sense today...

...One might have thought, indeed, that because the establishment clause only prohibits acts of Congress, and not of state or local authorities, the Supreme Court has no business telling state and local governments what to do with matters of religion...

...Those who have seriously studied its history have learned that the Fourteenth Amendment was originally designed to ensure that the contract and property rights of the newly freed slaves were not abridged, but the Supreme Court no longer feels itself bound by that history, and, for many years, the Fourteenth Amendment has been used by the Court as a tool to dictate what the states can and cannot do in matters of education, religion, abortion, gender, and a whole host of other areas completely unrelated to the original purposes of that provision...

...Getting the Court out of politics has a lot to be said for it, and if my old teacher was trying to do his part to stop the circus that Supreme Court nominations have been in the past and will likely be in the near term future, he was acting wisely...

...With the four/four split it was left to Justice Stephen Breyer, the Court's newest Justice, to resolve the case...

...Justice Scalia, as he had many other times, indicated in dissent to the Kentucky ruling that the Court had been wrong to declare that our governmental tradition was one of neutrality between religion and irreligion, that the Lemon test was not only wrong as a matter of historical practice, but led to judicial arbitrariness because of its endless manipulability, and that even if one applied the Lemon test to what had happened in Kentucky, it should have been the job of the Courts to defer to the Kentucky officials' ostensible secular purpose of educating the citizenry about the beneficial role of religion in American public life...

...The ACLU brought suit to remove them, on the grounds that they violated the establishment clause...

...The inclusion of the Commandments monument in this group has a dual significance...

...The academic and political vitriol unleashed against Meese when he did insures that no high-ranking federal official will likely try again...

...Said Stevens, "Recognizing the diversity of religious and secular beliefs held by Texans and by all Americans, it seems beyond peradventure that allowing the seat of government to serve as a stage for the propagation of an unmistakably Judeo-Christian message of piety would have the tendency to make nonmonotheists and nonbelievers 'feel like [outsiders] in matters of faith, and [strangers] in the political community,"' effects a majority of the Justices had previously declared impermissible...

...The Supreme Court has held, however, that this means that no state public school can mandate compulsory prayer or bible reading, that non-sectarian prayers at public school middle school graduations violate the Constitution, that student-led prayer at public school football games is impermissible, that states may not pay for the purchase of maps to he used at sectarian schools, and that free-standing creches may not be displayed on town property...

...Nevertheless, the Court has stated or implied that it is all right for state legislatures to begin their sessions with prayers, that chaplains in the armed forces paid with federal dollars are permissible, that "In God We Trust" does not have to be eradicated from our coins, that it is all right to have creches on public property if they are accompanied by menorahs and plastic Santa Claus figures, and that states may pay for the provision of services to "special education" students at religious schools...

...to display documents that played a significant role in the foundation of our system of law and government," and the Court should have upheld them...

...WHAT CAN SOMEONE WHO CARES about the Constitution and who still believes in the rule of law make of this jurisprudential mish-mosh...

...The Lemon test, then, misconstrued our past, and, Scalia observed, "As bad as the Lemon test is, it is worse for the fact that, since its inception, its seemingly simple mandates have been manipulated to fit whatever result the Court aimed to achieve," and that the majority had done it in this case...

...That arbitrariness, of course, is what led President Bush to make the Court a campaign issue, and to promise to appoint Justices in the mold of Scalia and Thomas, Justices committed to implementing the "original understanding" rather than a "living Constitution," Justices committed to leaving the making of law to the legislative branches and to the people, rather than a shifting five-person coalition on the Court...

...Splits of this kind among the Court are not unusual in cases involving race, abortion, gender, or religion, and underscore the arbitrary nature of what the Court has done in all of those areas...

...The clause is a fairly straightforward part of the First Amendment, and states that "Congress shall make no law respecting an establishment of religion...

...nor shall any State deprive any person of life, liberty, or property, without due process of law...

...The Supreme Court, this past term, had anopportunity to resolve the status of the Decalogue in American public life, but, alas, only sowed further confusion...

...As had the lower courts, Justice Souter invoked the three-part "Lemon test," first articulated in a 1971 case, Lemon v. Kurtzman, in which the Court had struck down Rhode Island and Pennsylvania programs that supplemented the salaries of teachers in religious schools for teaching secular subjects...

...O'Connor, and Ginsburg wanted the Ten Commandments banned, and Justices Rehnquist, Scalia, Kennedy, and Thomas wanted them to stay...

...An even more interesting irony of modern Supreme Court establishment clause jurisprudence is that the Court, now ostensibly committed to the kind OCTOBER 2005 THE AMERICAN SPECTATOR 13 THE TEN COMMANDMENTS MISH-MOSH of "separation of church and state" purportedly favored by the great Virginians Thomas Jefferson and James Madison, and a Court which loves to invoke their writings in "establishment clause" opinions, has blithely ignored the fact that those two were the greatest advocates of giving the states the maximum freedom to set state policy free from an overThe Supreme Court, this past term, had an opportunity to resolve the status of the Decalogue in American public life, but, alas, only sowed further confusion...

...The Federal District court and the Court of Appeals had held that Texas "had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency, and that a reasonable observer, mindful of history, purpose, and context, would not conclude that this passive monument conveyed the message that the State endorsed religion...

...wrote, "We are a religious people whose institutions presuppose a Supreme Being...

...Scalia went through a long series of historical events beginning with George Washington's adding to the form of Presidential oath prescribed by Art...

...Justice Stevens, in his opinion joined in by Justice Ginsburg, found the monolith to be an impermissible endorsement of monotheism by Texas...

...The inclusion of the Commandments monument in this group has a dual significance, partaking of both religion and government, that cannot be said to violate the Establishment Clause...

...There are nine members of the Supreme Court, and both of these cases were decided by five to four majorities...

...Changing tactics to suggest a valid secular purpose, the counties then further altered their courtroom exhibits, now labeling them "The Foundations of American Law and Government Display," including nine documents of equal size, one of which was identified as the "King James Version," of the Decalogue, quoting the Commandments at length, and explaining that they had "profoundly influenced the formation of Western legal thought and this Nation...

...16 THE AMERICAN SPECTATOR OCTOBER 2005 the purpose of singling them out in a display is clearly the same," so that their posting on the monolith on the Texas state capitol grounds amounted to an unconstitutional state establishment of religion...

...Jefferson, after all, used to talk about the federal judges as a group of "sappers and miners" destroying the foundation of American liberties, and he and Madison would have been appalled by the "incorporation" doctrine...