Robert Tuttle, a professor of law at George Washington University and member of Christ Lutheran Church, both in Washington, D.C., takes a look at the Supreme Court’s apparently conflicting decisions in two recent cases and raises concerns about possible consequences.
On June 27, the U.S. Supreme Court decided two cases involving government-sponsored displays of the Ten Commandments. A 5-4 majority in McCreary County v. ACLU (download a .pdf of the decision) held that two Kentucky counties violated the establishment clause of the First Amendment to the U.S. Constitution by posting the Ten Commandments in their courthouses. In Van Orden v. Perry (download a .pdf of the decision), an even more divided court ruled that the establishment clause doesn’t require Texas to remove from its capitol grounds a monument inscribed with the Ten Commandments.
These two apparently conflicting decisions reveal much about the court’s unsettled and complex law of church and state, features that are only magnified by Justice Sandra Day O’Connor’s retirement. (More detailed analyses of the decision and its legal background can be found at the Web site of the Pew Forum on Religion & Public Life.)
For most of the justices, the two cases posed the same question: In posting the Ten Commandments, were government officials using the displays to promote their religious message? If so, then the displays would violate the establishment clause, which requires the government to promote only those messages that are primarily secular. Secular messages—such as patriotism, care for the poor or environmental stewardship—may, and often do, coincide with religious commitments, and the government may acknowledge and even celebrate that overlap. But the government may not promote messages that are primarily religious, such as love for and obedience to God or the need for personal salvation.
In McCreary County, a majority of the court concluded that the Kentucky officials had posted the Ten Commandments because they wanted the public to respect and obey the commandments and the God who gave them. In Van Orden, four justices concluded that Texas officials had installed and maintained the display to recognize the civic contributions of the organization that donated the monument and to acknowledge the importance of the commandments as a foundation of our law and legal system.
But four justices thought the Texas display furthered the same religious purpose as the displays in McCreary County. Justice Stephen Breyer, who had voted to strike down the Kentucky displays, cast the deciding vote. He resolved this close case by turning to a different concern of establishment clause law: the risk of religious divisiveness. When a monument has been in place for a long time, Breyer reasoned, its court-ordered removal is likely to create far more religious divisiveness than simply leaving the monument in place. Given Breyer’s decisions in the two cases, it’s unlikely that many long-standing displays of the Ten Commandments will be ordered removed. But it’s also unlikely that many new displays will pass constitutional scrutiny.
Justice Antonin Scalia’s opinions in the two cases could be the decisions’ most important legacy. In a dissenting opinion in McCreary County and a concurring opinion in Van Orden, Scalia claimed the court’s establishment clause analysis rests on a fundamental error. Drawing from speeches and letters of the founding generation, Scalia argued that the constitution may prohibit the creation of a national church, but the establishment clause doesn’t forbid the government to promote religion, whether religion in general or the monotheism professed by most citizens. The constitution preserves, he reasoned, “the interest of the overwhelming majority of religious believers in being able to give thanks and supplication as a people, and with respect to our national endeavors.” Scalia concluded that “there is nothing unconstitutional in a State’s favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.”
In his unreserved embrace of a robust civil religion, Scalia challenges the foundation of modern establishment clause law—the commitment to secular government. Many would agree that this commitment can be, and has been, taken too far, resulting in policies that exclude religion and the religious from the public square. Rules that barred religious groups from using public school rooms—after school hours, when nonreligious community groups were free to use those rooms—rested on a misunderstanding of the establishment clause and have been uniformly struck down. Nor does a correct reading of the establishment clause lead to textbooks that omit the religious commitments of European settlers or teachers that prohibit children from reading Bibles in class.
But Scalia would do far more than restore religious voices to the public square or recognize that government officials may sometimes speak in religious terms because they are both officers of the state and individuals who hold religious beliefs. He would permit the government to institutionalize religious practices and commitments—to promote religious faith and observance.
As Christians formed by the Lutheran confessions, we should not peremptorily dismiss Scalia’s vision, though we should have serious concerns about its consequences. We confess that God is at work through civil government, and thus we should be open to the government’s acknowledgment of its divine calling.
But our concerns come from two directions. The public promotion of religious faith may marginalize those who don’t share the faith promoted, excluding them from a full share of life in the political community. More importantly, the government’s god is far more likely to be the god of the culture’s self-creation—a god of glory—than the only God we know (and who knows us first), the God incarnate in Jesus Christ, crucified and risen. Idolatry is enough of a problem for us already: We don’t need the government to help it along.
© 2013 Augsburg Fortress, Publishers