Two Important Establishment Clause Issues The Supreme Court Will Decide This Term,
Relating to The Ten Commandments and a Key Federal Statute

The Supreme Court has taken two important Establishment Clause Issues for this Term. One involves a topic that has been on the front pages for quite a while: when and where the government may install and display the Ten Commandments. Two of the cases before the Court - one from Texas, and one from Kentucky -- raise this issue.

The second involves the Religious Land Use and Institutionalized Persons Act (RLUIPA). Though this law is known to relatively few people, it has enormous impact. This case involves the "institutionalized persons," or prisoners, side of the statute.

Both of these cases illustrate the truth that Establishment Clause cases are rarely simple: They invite careful analysis, not easy answers.

The Establishment Clause: The Need for a Nuanced Analysis

For many people, one of the difficult elements of the Supreme Court's First Amendment jurisprudence is that it features few bright lines. There is one bright line, however: in the United States, individuals are absolutely protected in their right to believe anything they wish.

Every other First Amendment case is considered in context. For some, that is a reason to castigate the Court. For me, it is evidence that the Justices have been doing their appointed job. They are not automatons, programmed at their Senate confirmation and then directed to respond to either/or questions. It would be heaven if constitutional questions were simply a choice between two options, but these issues do not lend themselves to such oversimplification.

The Crèche Cases: A Particularly Controversial Church/State Area

In the Establishment Clause context, the criticism has been particularly harsh. Commentators have castigated the Court, for example, for some Christmas crèche displays constitutional and others not. But these results are not as irrational as they may appear.

Why? Because those criticizing the opinions have made the mistake of looking at the issue from the perspective of the speaker or actor, rather than examining the government's actions. The crèche cases were not centrally about crèches or those who believe in Christmas. Rather, they were about the necessary limitations on the power of the government to exclusively support a particular religious perspective in any way.

Where the crèche was in a courthouse, on a landing of the main staircase, all by itself, the Court reasoned (quite correctly, in my view) that the local government was sending a message that it endorsed Christianity and Christianity alone. In contrast, where the crèche was part of a general holiday display, and the message was "Shop," rather than "Believe," the display was held to be constitutional.

The Wrong Way to See The Issue: "God Has Been Removed from the Public Square"

Many in contemporary society feel that the government must be able to endorse Christianity, or the culture will wither, or we will all become pagans. This mistaken belief derives, in large part, from misleading claims about what is actually at stake in Establishment Clause cases like the Ten Commandments and Pledge of Allegiance cases.

The mantra has been that God or Christianity has been removed from the "public square" whenever government has been restrained from endorsing a particular religious viewpoint. This is a very clever rhetorical move, but it is also a deceptive one. In fact, the question under the Establishment Clause has nothing to do with the so-called "public square."

The truth is that the public square is the universe of private discourse in the country, and it is positively thriving. Every conceivable religious belief is present and discussed, and the mainstream religions have a strong political presence and clear access. That is as it should be.

Rather than addressing religions' access to the public square, these cases address whether the government can stand behind a particular religious viewpoint, or even religion in general. The answer from history and common sense is clear. There is more liberty when the government stays neutral toward religion, rather than becoming the vehicle for spreading religious messages.

The fact is that religious entities, especially the Christian ones, hardly need the government to help them distribute their message of "Believe." Go on the web, the television, or the radio, and one cannot avoid (even if one wanted to) religious messages and programming. Go to the legislatures, stop a member, and ask them when was the last time they met with a religious entity, or did something for them. Believe me, it's going to be very recent - probably that same day or week.

The Ten Commandments Cases the Court Did Not Take: Judge Moore's

Interestingly, the Ten Commandments case the Court took is not the one that made national headlines. Indeed, the Supreme Court declined to review Judge Roy Moore's attempts to permanently install a two-ton granite rendition of the Commandments in "his" courthouse.

It was a telling denial: By letting stand the decision of the U.S. Court of Appeals for the Eleventh Circuit's decision - which had vetoed the placement of the Ten Commandments -- the Court, in effect, sent a message that Moore's actions went beyond the pale.

The cases the Court did choose to consider, however, are closer ones.

The Texas Ten Commandments Case: The Commandments at the Capitol

First, there is Van Orden v. Perry. The case arose when, in Texas, Thomas Van Orden sought the removal of a granite monument of the Commandments on the grounds of the State Capitol, citing the Establishment Clause.

The 6-foot by 3.5 foot monument was donated by the Fraternal Order of the Eagles in 1961. It contains a "nonsectarian" version of the Commandments. It also contains various etchings: two small tablets with ancient Hebrew script; an American eagle with an American flag; an eye inside a pyramid; two small Stars of David, and a symbol of Christ--the Greek letters chi and rho, intertwined together.

As with all these cases, context is key: The Capitol sits on over twenty-two acres, and includes a wide array of historical references, including to the Alamo, Pearl Harbor, the Confederacy; a tribute to African American legislators; various religious references; and tributes to children and to pioneer women, among others.

The state won in the trial court and before the Court of Appeals - by arguing that, viewed in context, the monument's placement was no Establishment Clause violation.

The Kentucky Ten Commandments Case: In Courthouses and Public Schools

The second Ten Commandments case is ACLU v. McCreary County. This case involves the display of the Ten Commandments in Kentucky county courthouses, and in the public schools. Unlike in the Texas case, the displays were not part of any larger historical or educational display, but rather were situated by themselves.

After the lawsuit was filed, however, the courthouse Commandments were not left to stand alone. Instead, they were joined by a portion of the Declaration of Independence; the Kentucky Constitution's preamble; "In God We Trust"; a page from the 1983 Congressional Quarterly referring to the "Year of the Bible" and reprinting the Ten Commandments; a proclamation by President Lincoln establishing a Day of Prayer and Humiliation; Lincoln's statement, "The Bible is the best God has ever given to man"; President Reagan's labeling 1983 as the Year of the Bible; and the Mayflower Compact.

The schools, too, saw these same additions -- as well as a statement citing recent state and county laws declaring that the displays were legal.

In the lower courts, these modified displays were found to be a violation of the Establishment Clause. The courts ordered that they be removed immediately, because they contained only the religious elements of various public documents.

But the government then opted to supplement the displays with the entire Star Spangled Banner, Declaration of Independence, the Bill of Rights, the Magna Carta, Lady Justice, and a one-page introduction to "The Foundations of American Law and Government Display."

How Will the Ten Commandments Cases Be Resolved?

Each of these cases tests the Supreme Court's context-dependent Establishment Clause jurisprudence.

Where the government transparently endorses a religious viewpoint, as was the case with Roy Moore Ten Commandments, the Establishment Clause violation is readily apparent. As I have discussed in a prior column, the first four commandments are purely religious and cannot be defended as the "basis" of American law. So any posting of them with the intention of indoctrinating those who view them violates the Establishment Clause.

On the other hand, however, education about religion, or through reference to religion, is not unconstitutional. Indeed, it is a valuable part of any education. Thus, the hard question in each case is whether the particular displays cross the line from permissible education to government endorsement.

Many have called upon the court to give guidance on this issue, and many no doubt expect or hope for a plain-as-the-nose-on-your-face ruling.

But those who seek an easy-applied, general rule are unlikely to be satisfied. The Court has drawn the right parameters, but the government and its religious lobbyists are wily. Thus, a case-by-case analysis is inevitable.

The Constitutionality of RLUIPA in the Prison Context

The second Establishment Clause issue the Court will consider is raised by a case called Cutter v. Wilkinson. The case concerns an important federal statute - the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA is the successor to the Religious Freedom Restoration Act (RFRA), which the Supreme Court declared unconstitutional in 1997, in Boerne v. Flores.

As I discussed in a previous column, RLUIPA affects land use. But this case is about "institutionalized persons" - that is, prisoners.

RLUIPA prevents prisons from applying their generally applicable, neutral regulations when prisoners' religious liberty is affected, unless they satisfy the strictest scrutiny known to constitutional law. Under this test, to apply a regulation, the government must prove it has a compelling interest and that it enacted the least restrictive means of achieving that interest.

In effect, then, under RLUIPA, every relevant prison regulation is presumptively unconstitutional. The result has been to make it harder for prisons to maintain order.

The Supreme Court had previously announced the standard for cases involving prisoners' religious liberty - in its decision in Turner v. Safley. That decision made clear courts would defer to prison administrators so long as they were acting out of legitimate penological interests. But Congress, in RLUIPA, sought to replace the Court's standard with its own.

The Appeals Court's Decision: This Part of RLUIPA Cannot Stand

The case before the Court was brought by inmates held - now or in the past -- by the Ohio Department of Rehabilitation and Corrections. They identify themselves are Wiccan (a polytheistic pre-Christian religion that focuses on nature); Asatru (a polytheistic religion that believes in an unknowable divine energy); Satanist (anti-Judeo-Christian); or part of the Christian Identity Church.

They complain that they have been denied access to religious literature; access to religious medallions and religious ceremonial items; and access to group worship. They also claim they are treated less well than those who belong to mainstream religions.

Ohio responded, however, that RLUIPA has fostered the development of inmate gangs, which use their religious beliefs to cover for illicit activities. Prisons across the country are grappling with the problem of religiously affiliated gangs, which foster violence and discord in the prison population.

The U.S. Court of Appeals for the Sixth Circuit struck down this part of RLUIPA as an Establishment Clause violation - holding that it unconstitutionally grants special privileges to prisoners solely on the basis of their religious status. Now the Supreme Court must decide if it agrees.

What Will the Court Rule? The Key Arguments It Will Consider

This is a facial challenge, which means the facts of any particular inmates' claims are not relevant. Rather, the Court is being asked solely to rule on whether the law is constitutional.

(In addition to the Establishment Clause question, the case also asks Court to resolve whether the law was a permissible exercise of Congress's power under either the Commerce or Spending Clauses. However, those issues are beyond the scope of this column - as is the interesting issue of a possible separation of powers problem here, where Congress is attempting to replace a constitutional standard previously set by the Supreme Court.)

The Establishment Clause argument upon which the Sixth Circuit resolved the case is strong. Moreover, there is an additional argument that RLUIPA is what I call "blind exemption" - meaning that it does not lift a known burden on religious conduct. Rather, it grants religious entities a legal tool that permits them to employ the federal courts to get around regulations that otherwise would be constitutional.

It may be significant to the Court that, in passing RLUIPA, Congress did not consider specifically the range of religions in the prisons -- and it certainly did not study the nearly intractable problem of gangs, and violence. Rather, it granted a request by lobbyists such as Charles Colson, who preaches a particular brand of Christianity in the prisons. (As usual, in a setting involving religion, Congress did not challenge the request, but rather rushed to grant the request, as though it has no responsibility to the larger public good.)

Suffice it to say that this case - like the two Ten Commandments cases - will be very much worth following.