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Jewish World Review June 28, 2005 / 21 Sivan, 5765

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High Court hairsplitting

http://www.NewsAndOpinion.com | The Supreme Court on Monday rendered two more hairsplitting, migraine-inducing decisions about when religious displays on public property do and do not violate the First Amendment protection against "establishment'' of religion.

In a case from Texas, where a Ten Commandments monument stands outside the state Capitol, the court, splintered six ways from Sunday, said: We find no constitutional violation. The second case came from Kentucky, where the Commandments displayed in several courthouses are surrounded by historical symbols and documents   —   e.g., copies of the Mayflower Compact, the Declaration of Independence, the Star Spangled Banner   —   to comply with the "reindeer rule,'' more about which anon. On Monday the court recoiled from Kentucky's displays, saying, they are unconstitutionally motivated by a "predominately religious purpose.'' Not enough reindeer?

Never mind the court's minute reasoning about the finely tuned criteria it has spun over the years. Instead, consider   —   as the court should have done years ago, when it began policing religious displays   —   a few facts about the era in which the Establishment Clause was written.

In 1789, the First Amendment was drafted by the first Congress   —   after it had hired a chaplain. Although President Jefferson's religion was a watery deism, he regularly attended Christian worship services, often with the Marine band participating, in the hall of the House of Representatives. The House was used because of the shortage of suitable venues in the newly founded District of Columbia. Jefferson, who coined the metaphor "wall of separation'' about relations between church and state, also allowed the War Office and Treasury to be used for religious services that were open to the public. The Supreme Court chamber also was used for services.

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On the Fourth of July, 1801, a reverend took up a collection on the House floor to support services he conducted at a nearby hotel. Jefferson contributed $25 to the cause. The Speaker's chair served as a pulpit for Anglican, Presbyterian, Methodist and Quaker clergy. In 1813, a Massachusetts congressman reported that "two very Christian discourses'' were "preached in the hall introductory to a contribution for the purpose of spreading a knowledge of the gospel in Asia.'' Services were conducted in the old House, now Statuary Hall, until 1857.

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The generation that wrote and ratified the First Amendment obviously thought that none of these practices   —   all recounted in James H. Hutson's book "Religion and the Founding of the American Republic,'' published by the Library of Congress and based on an exhibition there   —   violated the Establishment Clause. So why is today's court preoccupied with the supposed problem of mere displays of the Commandments? Because beginning about 25 years ago the court evidently decided that the Establishment Clause's historical context, and the Framers' intentions regarding it, are irrelevant.

By now the supposedly crucial question is whether to a reasonable observer a religious display on public property constitutes government "endorsement'' of religion. So governments try to dilute the displays' religious content, as Pawtucket, R.I., did. In 1984, the Supreme Court declared Pawtucket's Christmas creche constitutional because it included a reindeer, a sleigh, Santa's house and other secular bric-a-brac.

Decades ago, the court ruled that the Establishment Clause was violated if government supplied books to religious schools but not if it supplied maps. Pat Moynihan wondered mischievously: What about atlases, which are books of maps?

Decades ago, the court ginned up a three-pronged test of permissible government contact with religion: It is permissible when the contact has a secular purpose, neither advances nor inhibits religion, and does not foster excessive entanglement with religion. This pulled the court into niggling censoriousness about common social customs   —   for example, forbidding nonsectarian prayers at school graduations. The three-pronged test produced a comic moment when the court, flinching from forbidding the Nebraska Legislature to have a chaplain, implicitly said that the good cleric did not advance religion. Enough already.

Nowadays many people delight in being distressed. They cultivate exquisitely tender sensibilities and practice moral exhibitionism, waxing indignant about minor encounters with thoughts and symbols they dislike. So just to lower the decibel level of American life, perhaps communities should refrain from religious displays other than in religious contexts.

But this is a merely prudential, not a constitutional consideration. On Monday the justices churned out 140 pages of opinions and dissents about the Texas and Kentucky displays. Here is a one-sentence opinion that should suffice in such cases: "Because the display on public grounds does not do what the Establishment Clause was written to prevent   —   does not impose a state-sponsored creed or significantly advantage or disadvantage one sect or sects   —   the display is constitutional.''

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