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Jewish World Review March 4, 2005 / 23 Adar I, 5765 Thou shalt make no sense By Rich Lowry
http://www.JewishWorldReview.com |
The Supreme Court has just heard oral arguments in two cases — one in Kentucky, the other in Texas — involving the display of the Ten Commandments, thus opening another act in the long-running absurdist drama known as "Supreme Court Establishment Clause Jurisprudence."
The First Amendment says that "Congress shall make no law respecting an establishment of religion." Throughout most of American history that has been taken to mean — oddly enough — that government can't establish a religion. It is the Supreme Court in recent decades that has taken this straightforward admonition and made it an impossible-to-understand mess. So the other day Justice David Souter mused aloud whether a display of only the last five commandments — so much for honoring your mother and father (No. 4) — might be constitutional in a way that a display of all 10 is not.
A better question is: If a Ten Commandments display establishes a religion, exactly what religion is it? Is it Judaism? And if so, Orthodox or Reform? Or is it Christianity? If so, Roman Catholic or Protestant? If the latter, is it Lutheran, Episcopal, Presbyterian or something else? Maybe Seventh-day Adventist? If government has gone to the trouble of establishing a religion, shouldn't all of us know which one? Or is this just another case of government's notorious bureaucratic inefficiency? It meant to establish a religion, but memos got crossed somewhere and it couldn't agree on its fundamental tenets?
The Becket Fund for Religious Liberty argues in an amicus brief, reasonably enough, that government is always going to reflect the culture around it, and therefore acknowledge the varied religiosity of America. New York City marks a tree in Tompkins Square Park the "Hare Krishna Tree." In Hawaii, the federal government has bestowed special status to the Pu'ukohola Heiau Temple in honor of the war god Kuka'ilimoku. The United States Capitol displays a monument of the Roman goddess of Liberty, and yet countless millions of nonpagans have visited the Capitol without lodging any objection.
Indeed, the alleged harm of Ten Commandments displays is attenuated to the point of nonexistence. The Texas case came about because in 2002 a homeless man named Thomas Van Orden — on his way to idling the day away at the State Law Library — noticed the display on the grounds of the Texas state Capitol. As it happens, Van Orden has a law degree (is this an over-lawyered country or what?). With nothing else to do with his time, he sued. The display had been up since 1961, and in 40 years, no one in Texas had noticed the state was trying to establish a religion.
But Van Orden got his day in the Supreme Court, because the court lives by a commandment of its own: "Thou shalt make no sense." Long ago it rejected any clean standard for interpreting the establishment clause, opting for a confusing morass instead. The 3rd U.S. Circuit Court of Appeals has said "[t]he uncertain contours of these Establishment Clause restrictions virtually guarantee that on a yearly basis, municipalities, religious groups and citizens will find themselves embroiled in legal and political disputes." Uh, yeah.
As near as anyone can tell, the court's standard for constitutionality is whether a reasonable observer would conclude that government is endorsing religion as a general matter. Even by this standard, the Kentucky courthouse displays should pass muster. They include eight other documents, such as the Declaration of Independence and the Magna Carta. If this display is illegal, the Supreme Court will be making illicit any governmental acknowledgment of the influence of "ethical monotheism" — as law professors Gerald Bradley and Robert George put it — on the foundation of America.
The Texas case is dicier, since the display isn't quite so clearly part of a historical statement. Expect tangled 5-4 decisions in the two cases that do little to clarify anything. The Ten Commandments are one of Western culture's great symbols of law. In its arbitrary and erratic jurisprudence, the U.S. Supreme Court has become a symbol of the opposite.
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