Between Religious Equality and Liberty

By Marc Stern

Published July 01, 2005, issue of July 01, 2005.
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Lawyers will be arguing for a long time about the practical effect of this week’s Supreme Court decisions in two cases related to the public display of the Ten Commandments. About the only thing that can be said with certainty is that the hope that the court would establish clear rules about religious displays to minimize divisive litigation has been dashed. For lawyers like me who made a living from the religious clauses of the Constitution, that is not a bad thing, but for society at large, it is not healthy.

The inconsistencies and uncertainties in the decisions are many. In the case arising from Kentucky, the Court applied the three-part Lemon v. Kurtzman test to determine the constitutionality of the Ten Commandments display; in the Texas case, the plurality rejected application of that very test to passive religious displays.

Justice Stephen Breyer, who cast the deciding vote in the Texas case, did not apply Lemon in that case, but joined with Justice David Souter in applying it in the Kentucky case. One searches Chief Justice William Rehnquist’s opinion in the Texas case and that of Breyer in vain for any firm rule that predicts with certainty which displays are constitutional. My bet is that on these legal facts, most lower court judges are going to bend over backward to uphold religious displays whenever possible.

Perhaps spurred by the furious reaction by much of the so-called religious right to this week’s decision, Congress will rashly seek to intervene in defense of all religious displays, as the House of Representatives did earlier this month when it voted to prohibit the Justice Department from using appropriated funds to enforce a court order banning a particular religious display. That type of intervention would lead to a constitutional crisis.

All these are matters of technical interest and lie in the future. Of far greater present importance are other features of the Supreme Court’s opinions. The central dispute in the more than 120 pages of opinion in the two cases is not technical questions of the Establishment Clause law. Instead, the justices debated the fundamental question of whether the Establishment Clause permits generic, non-coercive endorsements of religion, or whether the government must be neutral between the two.

Twenty years ago, in a school prayer case, Rehnquist was alone in urging that the Establishment Clause, given the views and practices of the Founders, should not be read to ban an official preference for religion over non-religion, and did not mandate a scrupulously neutral government. Then, Justice John Paul Stevens wrote for a majority in rejecting that proposition.

Today, Rehnquist is joined by at least two, and perhaps three, other justices in rejecting the neutrality model (Justice Anthony Kennedy’s views are uncertain). That is a significant change. That group of four might form a majority of five with a single new appointment to the court. Any presidential nominees to the Supreme Court for the foreseeable future will be asked for a position on this crucial question.

Religion is not like an aspirin tablet, a generic product without significant differences between brands. What does it mean that government can endorse religion? The chief justice’s plurality opinion in the Texas case — with the exception of a curious footnote that describes prayers invoking Jesus as being in the Judeo-Christian tradition — is largely silent on this point.

Justice Antonin Scalia was not so reticent in his dissent in the Kentucky case. He described the constitutional tradition allowing a preference of religion as including three monotheistic faiths: Judaism, Christianity and Islam. This is an odd assertion for an originalist, one who interprets the Constitution according to its literal terms and historical context.

There is, as Stevens cogently pointed out in dissent in the Texas case, no historical evidence for this pluralistic “reading” of the Constitution. Scalia was clear that that members of non-monotheistic faith could not be coerced to monotheism, but the government was entitled to express a preference for monotheism. Atheism, Buddhism and Hinduism were outside this consensus, and may be officially disadvantaged by being excluded from government’s embrace. (It is just this part of the Scalia’s opinion that Kennedy refused to join.)

Jewish support for a high wall of separation between church and state and the religious neutrality of government has, in large measure, been premised on the notion that the only available alternative to a religiously neutral America was a Christian America.

The 19th Supreme Court endorsed the view that America was a Christian country. Scalia has now posed a different alternative: a monotheistic America in which Judaism is fully accepted as an equal partner. This is no small achievement for American Jews. Its significance ought not to go unremarked, nor its implications for American Jewish communal policy go unconsidered.

On the whole, though, I believe Scalia’s wholesale concession does not justify a change in Jewish support for government neutrality. It is not a position well-grounded in history. It is impossible to square with a principled commandment to religious liberty. Important and politically potent elements of the evangelical community continue to emphasize America’s specifically Christian character, and some have already reaffirmed that commitment since the Supreme Court handed down its decisions in the Ten Commandments cases.

There is more than a little irony in a faith as radically monotheistic as Judaism fighting for the polytheistic faiths and atheism. Yet there really is no alternative.

Faith resists generic labels. It always takes a specific form. In a county whose citizens are overwhelmingly Christian, permission to endorse faith will ultimately take on a Christian form. It is no coincidence that every Ten Commandments case litigated so far has involved a Christian version of the Commandments.

Marc Stern is general counsel of the American Jewish Congress.

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