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The Texas State Capitol's Ten Commandments at the Supreme Court:
Part One of a Two-Part Series on This Term's Ten Commandments Cases

Thursday, Mar. 10, 2005

Last week, the Supreme Court heard oral argument on two Ten Commandments cases. Each raises the question whether a state's public display of the Ten Commandments violates the Establishment Clause, by communicating a state endorsement of religion.

Van Orden v. Perry - which I will discuss in today's column - addresses a public display of a monument inscribed with the Ten Commandments on the grounds of the Texas state capitol. McCreary County, Kentucky, et al. v. American Civil Liberties Union of Kentucky - which I will discuss in my next column -- addresses a public display of the Commandments in a Kentucky court.

Both, as I will explain, are closer cases than the famous Ten Commandments dispute that made headlines last year. In that dispute, which I discussed in a previous column, Judge Roy Moore placed his own two-ton monument to the Ten Commandments in the rotunda of the Alabama Supreme Court courthouse. This obvious endorsement of religion by a government official was plainly unconstitutional.

Plainly unconstitutional, too, was the Ten Commandments display - placed in a public school - that the Court confronted in 1980 in Stone v. Graham. There, children too readily took the commandments as part of their curriculum -- government instruction as to what they should believe.

In contrast, reasonable minds can differ as to the two Ten Commandments cases before the Court now. Those handicapping the cases seem to think Texas's display will probably pass muster, while Kentucky's one will not. We'll see.

The Van Orden Case: The Crucial Importance of Context, and a Subtle Approach

Public display cases are always context-dependent, and the Van Orden case is no exception.

The monument at issue sits amidst sixteen other nonreligious monuments (mostly to war veterans), all of which are placed at the heart of the grounds of the Texas state capitol. Rather than being purchased by the government, the monument was donated by a private group -- the Order of the Eagles, which has donated displays of the Ten Commandments to governments all over the country.

The question is whether the placement of the monument at the heart of the state's capitol grounds sends an impermissible message of endorsement of religion from the Texas government. (Plainly, the Eagles are endorsing the Commandments. But private endorsements don't violate the Establishment Clause, even if they happen on public property. The question is: Is the government violating the Establishment Clause by accepting the gift, and giving it a place among the other monuments?)

As Justice O'Connor (for whom I clerked) remarked early in the oral argument, it is "so hard to draw that line" between permissible and impermissible religious speech from government. In an earlier case, Kiryas Joel v. Grumet, O'Connor commented, similarly, that there could be no "Grand Unified Theory" of the Establishment Clause.

O'Connor is correct, of course. By pairing the Free Exercise Clause with the Establishment Clause, our system strikes a careful balance -- ensuring that religion and government can coexist, but taking care that neither can overpower the other. Accordingly, a delicate approach from the court is necessary.

Is Marsh v. Chambers Relevant, Decades Later in a More Diverse America?

At oral argument, the Justices focused a great deal on the Court's 1983 decision upholding "nondenominational" legislative prayer, Marsh v. Chambers.

The question posed, more than once, was: If prayer may be permitted within a legislature, cannot the Ten Commandments be placed outside the legislature? If anything, the Justices suggested, a Ten Commandments monument outside a legislature seems an easier case than the legislative prayer the Court approved in Marsh.

That may be true, but the facts have outpaced the Marsh holding, in the over two decades since it has been issued. During the Framers' time -- when the intense variety of Christian beliefs could yield to some claimed similarities - "nondenominational" prayer could claim to be inclusive. In Marsh, the Court allowed that tradition to continue, because the culture's religious frame of reference, at the time, was still largely that of Christianity.

Now, however, no "nondenominational" prayer can reasonably be thought to be sufficiently inclusive. Americans' modern variety of beliefs -- whether they be Christian, Jewish, Sikh, Wiccan, Muslim, Buddhist, Hindu, secular, or atheist -- is simply too broad to justify claims to a shared religious life. It precludes the possibility of "nondenominational" prayer.

The Court may still decline to overrule Marsh, but if it does, it will simply be preserving a single, unique tradition - not opening the door to further government religious practices. For this reason, Marsh is not as strong a precedent for Ten Commandments displays as it might seem.

Similarly, too, the fact that Ten Commandments displays will appeal to Christians and Jews alike cannot serve to obfuscate the fact that they do not in any way represent or include the beliefs of others in America whose religious book is not the Bible, who follow no religious book, or who violate the first Commandment by worshipping many gods or none.

The nondenominational frame of reference is no longer plausible as an empirical matter, because the amazing American First Amendment has yielded a bumper crop of religious belief. It is simply too late in history to make the claims Justice Scalia repeatedly made during the oral argument, that Americans share belief in a "unitary God," or shared belief that the laws have been handed down by a particular God.

Entrenched religious diversity is the factual reality that ought to determine these cases, not the mythology of nondenominational religious speech.

The Culture War over Government Sponsorship of Religion

The Van Orden oral argument, then, reflected the debate over whether any religious statement, in modern America can be sufficiently nondenominational. It also - and equally importantly - reflected the current culture war over government sponsorship of religious action and speech.

Justices Scalia and Kennedy, and acting Solicitor General Paul Clement, all made clear that, in their view, outlawing government-sponsored religious speech would go farther than the Establishment Clause requires: It would go further, to evidence "hostility" toward religion, or evidence an inappropriate "obsessive" concern about such speech.

Justice Scalia set up a dichotomy. On the one hand, the Ten Commandments simply represent the "fact that government comes -- derives its authority from God." And that God is a "unitary God." (Chief Justice Rehnquist declared this same "fact" in his Elk Grove Unified School Dist. v. Newdow case opinion last Term, which I discussed in a prior column.)

But in what sense is this a "fact"? No scientific experiment will prove it. This is not fact but belief. And claiming the contrary is pure hubris.

Maybe Justice Scalia meant that American history shows that many at the time of the framing believed that God was the source of the law -- though that would be a complicated claim to validate or even define, because the most educated attributed the law to many sources -- but that is not the claim he repeated several times at oral argument.

On the other hand, according to Justice Scalia, refusing to display the Ten Commandments on public property exhibits "hostility" toward religion. Justice Kennedy and acting Solicitor General Paul Clement seem to feel the same as Justice Scalia on this score. Indeed, the fallacious argument that government must either sponsor religion, or be hostile to it, seems quite au courant these days.

Oddly, it does not seem to trouble Scalia or the others that this argument plainly implies that the Ten Commandments captures something that speaks as religious belief to the vast majority of citizens. In other words, it concedes that Ten Commandments displays send a religious message. Isn't that conceding the Establishment Clause violation too?

In the view of Scalia, Kennedy, and Clement, it seems, it would have been hostile to religion for the Texas government to reject the Eagles' gift, and decline to dedicate prominent public property to its display. But that view is wrong.

The Constitution requires that government be prohibited from speaking on behalf of any religious viewpoint. It requires, in other words, that such speech remain private: that the Eagles, for example, place their Ten Commandments display on their own private property - something which, according to the Free Exercise Clause, they have a constitutional right to do. And they can do it on easily accessible private property so that many are exposed to it as they walk by.

Is that requirement "hostile" to religion? On the contrary, privatizing religion -- in the context of a thriving and lively marketplace of expression and ideas -- frees it, rather than limits it.

It is not true, as many urge, that religion is devalued if government may not host or endorse its messages. If anything, religion's value is clearer if religion is kept separate from the government, for by that token, religion's strength and independence are shown. The fact that it can thrive without the government's propping it up is clear.

If Texas loses this case, for example, that hardly means the Ten Commandments monument must be mothballed. To the contrary, it can be moved onto prominent private grounds, where it would still be visible to the public.

The only difference between a prominent private-property placement, and the prominent public-property placement the monument now enjoys, lies in whether the government stands behind (implicitly or explicitly) the religious message that is sent. Both placements are equally effective in sending the chosen message. Only the public-property placement, however, sends a second, impermissible message: "The government is behind our message."

The public/private distinction is crucial, because one cannot have it both ways. Many Christians invoke the Free Exercise Clause to protect their opposition to abortion, to gay marriage, and to anti-discrimination laws. Yet the Free Exercise Clause, and the marketplace of religion, can only thrive when the Establishment Clause thrives too - and ensures a private space for religious expression.

So Christians who seek government support for their mission services through faith-based funding should think twice. They may, in effect, have permitted the same government to curtail their own private religious practices, by extending its public reach. Carving out a sphere for religious freedom, also means keeping the government out of that sphere.

The Invocation of the "Public Square" Does Not Support Government Displays

Critics protest that privatizing religion means pushing it out of the "public square." But that is simply incorrect. The public square encompasses not only the traditional town square and other public spaces, but all the modern media of communication - from newspapers, to television, to the Internet, to radio, including satellite radio.

Properly conceived, then, the public square is rife with a dizzying array of religious material. And all this religious expression is fully protected by the Free Exercise and Free Speech clauses.

The streetcorner speaker, for instance, is as fully protected from government censorship when he speaks of religion, as when he speaks of politics. So is the pundit to whom millions listen.

Billboards and license plate frames carry religious messages. Television, radio programming, and even spam is often religious. The Free Exercise Clause guarantees any group's right to purchase its own Ten Commandments and place them on property readily visible to the public - even if the property is a shopping mall, which is a modern-day town square.

The percentage of believers among Americans is the highest in the world. The variety of religious beliefs among Americans is more than the human mind can comprehend. Secularization, far from being a present-day reality in the United States, would literally be impossible to achieve.

What is at stake here is only whether the government itself may display such images. It goes against the grain of the current culture war to say this, but those fighting for these images are fighting for the right to coopt the government in the delivery of their particular religious message - not to save the country from secularization. This country is not going to craft a secular society no matter what images government puts forth or not.

There are dangers, too, if the government becomes our society's religious messenger. As the majority relies on the government to put forth its religious messages to the people, those messages will drain away from the public square.

The Point that Atheists Can Avert Their Gaze Doesn't Work Here

Justice Kennedy made a point suggesting that the Texas Ten Commandments monument, in the end, does little harm: If atheists (or, presumably, those who are religious, but who do not take the Bible as their Book) don't like it, they can just avert their eyes, he suggested.

This argument can be effective at times (though not always) in the free speech context. If we find speech offensive, we can turn away. If we find government-sponsored speech offensive, the same is true. In this way, both speakers and unwilling listeners' or viewers' rights can be accommodated.

But the Establishment Clause is not the Free Speech Clause. It forbids government endorsement of religion - not government restraints on speech. And this is an important difference.

The court below found, as a factual matter, that the monument conveyed religious meaning. This finding alone suggests an unconstitutional endorsement of religion. And it takes only a second's glance to perceive that message of endorsement fully: a famous religious text is enshrined on public property near the state capitol. Even if the eyes have been averted, the endorsement has been communicated, and the damage has been done.

(Ironically, the very fact that the Ten Commandments represent majority belief ensures that they are instantly recognizable as religious. A Buddhist passage, in contrast, might take longer to convey its message to the average American.)

And the message that is instantly transmitted has another harm, as well. The harm is not just that the government has communicated its endorsement of a particular religion. It also is that atheists (and Buddhists, Hindus, Muslims, and more) get the message that they cannot be integral parts of the political culture, because they don't share a belief in its origins or justifications. The fact of religious diversity was not the centerpiece of the oral argument in Van Orden, but it is the crux of the entire case.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Professor Hamilton's book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press), will be published later this year.

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