MayerBlog: The Web Log of
David N. Mayer

The Ten Commandments Decisions

Last week, on Monday, June 27, the final day of the U.S. Supreme Court’s 2004-2005 term, the Court issued its decisions in two cases involving government display of the Ten Commandments, McCreary County (Ky.) v. ACLU of Kentucky and Van Orden v. Perry.  As I had predicted in my previous discussion of these cases (see “Supreme Nonsense – Part I,” March 7), the Court split the difference, ruling that while the display in Kentucky violated the First Amendment religion clause, as an unconstitutional “establishment” of religion, the display in Texas did not. 

Eight of the Court’s nine justices saw no essential difference in the facts of the two cases:  three of the Court’s “liberal” justices – Stevens, Souter, and Ginsburg – joined by the “moderate” conservative Justice O’Connor, took the view that the Ten Commandments displays in both cases were unconstitutional, while the four more conservative members of the Court – Chief Justice Rehnquist, joined by Justices Scalia, Thomas, and Kennedy – took the view that the displays in both cases were constitutional.  It was one of the Court’s left-liberal justices, Breyer, who distinguished the facts of the two cases and thus voted with the majority in both, providing the critical fifth vote that resulted in the split decisions.   (As noted below, Breyer’s rationale for distinguishing the two cases is not persuasive, for it naively overlooks some critical background facts.  Thus, the results of these two cases say as much about Breyer’s jurisprudential weakness as they do about the Court’s understanding of the First Amendment.) 

The two decisions, taken together, added virtually nothing to the Court’s First Amendment religion clause jurisprudence.  Most of all, they revealed how divided the Rehnquist Court has been on this part of constitutional law.  Now that Justice O’Connor (who has continued to play a pivotal role on the Court in this area) has announced her retirement, the divisions on the Court in these cases suggest we can expect a bitterly partisan battle in the Senate this summer over President Bush’s nominee to be Justice O’Connor’s replacement. 

The Serpentine Wall of Separation

Since its decision in the 1947 case Everson v. Board of Education, the Supreme Court has adopted Thomas Jefferson’s metaphor, “a wall of separation between Church and State,” as its key concept in interpreting the First Amendment religion clause, particularly the part of the clause that prohibits government “establishment” of religion.   The “wall” metaphor seems especially apt, when we consider how complicated – and apparently contradictory – the Court’s establishment-of-religion jurisprudence has been over the past 60 years.  Indeed, as some commentators have suggested – stretching the “wall” metaphor perhaps a bit too far – the wall separating Church and State, as erected by the Court, resembles more the so-called “serpentine” brick walls designed by Jefferson for the University of Virginia.  These walls, rather than running straight, run in “S”-shaped curves, like the body of a snake (hence the term serpentine), which was used by Jefferson in his design for the University as an economy measure, for the serpentine shape strengthens the wall, allowing it to be only one brick thick.  Do the twistings and turnings in the Court’s reading of the prohibition on government “establishment” of religion similarly strengthen the “wall” it has erected – or is its adoption of the Jeffersonian metaphor simply an economy move? 

There’s nothing simple about the concept of “a wall of separation,” whether straight or serpentine; even among those who agree that the First Amendment demands government “neutrality” toward religion – that is, that it neither advance nor inhibit it – there’s little consensus on what neutrality means, in practice.  As Justice Thomas notes in his concurring opinion in the Texas case, “the incoherence of the Court’s decisions in this area renders the Establishment Clause impenetrable and incapable of consistent application,” leaving everyone – “courts, governments, and believers and nonbelievers alike” – “confused.”  When I was studying for the bar exam, 21 years ago, in the summer of 1984, I remember the lecturer on constitutional law suggested, as a way of rationalizing one part of the Court’s confusing Establishment Clause jurisprudence – the constitutionality of government aid to parochial schools – a mnemonic device, “the rule of T”:  if it begins with the letter “t,” then it’s permitted.  Thus, as the Court had ruled, “transportation,” “textbooks,” “testing,” and lunches (if we think of them as “tuna”) are permitted forms of government aid to religious schools; however, other forms of aid, for things whose names do not begin with “t” are not permitted – for example, remedial services and the salaries of teachers (although teachers begins with a “t,” salaries begins with an “s”).  Sure, it’s silly and arbitrary – but the fact that it worked as a mnemonic device shows how silly and arbitrary the Court’s jurisprudence in this area was some 20 years ago.  It hasn’t improved much in the past two decades, but it has become even more complicated – making something as simplistic as “the rule of T” no longer viable as a rationalization. 

Nevertheless, since the early 1970s the Court – or, at least, a majority of its justices – has developed a test for determining the constitutionality of alleged governmental actions “respecting an establishment of religion” (as the First Amendment forbids).  It’s called “the Lemon test,” not as a commentary on its efficaciousness (although more than one critic has enjoyed making the pun), but rather because it was first articulated in Lemon v. Kurtzman (1970) by Chief Justice Warren Burger in his opinion for the Court, involving another government program that aided religious schools.  The three-part Lemon test requires, for a challenged governmental program to be upheld (i.e., to be considered not an unconstitutional “establishment” of religion) that it (1) have a secular purpose, (2) not have a primary effect of either advancing or inhibiting religion, and (3) avoid “excessive entanglement” between government and religion. 

In the 1970s and early 1980s – during the Burger Court years – very few government programs that provided aid to religious schools or religious school students survived the three-part test.  In the late 1980s and 1990s, however, the Rehnquist Court generally has applied the Lemon test less strictly, with Chief Justice Rehnquist himself explicitly rejecting the test while other justices either would apply it with greater flexibility or in some alternative formulation.  In Agostini v. Felton (1997), the Court upheld a government program that provided remedial services to students at both religious and nonreligious schools, by ruling that the program had a secular purpose and did not have a primary effect of advancing religion – a ruling that has opened the door to taxpayer-funded school voucher programs, like the Cleveland, Ohio program upheld by the Court a few years ago, that allow parents to use the vouchers at the school (religious or non-religious) of their choice. 

The Court’s decisions involving religion in public schools or in “public places” (such as government buildings or parks) have been only slightly less confusing.  In the precedent perhaps most directly relevant to the Kentucky and Texas Ten Commandments cases, the Court found unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public school classroom (Stone v. Graham (1980)).  In the school prayer cases of the early 1960s, the Court had found that the recital of a government-composed prayer in public school classrooms was an unconstitutional establishment of religion (see Engel v. Vitale (1962)); thirty years later, the Court found equally unconstitutional the recital of a prayer at a public high school graduation (Lee v. Weisman (1992)).  Chief Justice Rehnquist, who dissented strongly in the latter case, has led the conservative block of justices on the Court – joined by the equally-vocal Justices Scalia and Thomas as well as by their silent partner, Justice Kennedy – in calling for a jurisprudence more “accommodating” of government recognition of religion.  Their view has prevailed in a few decisions, for example, Marsh v. Chambers (1983) (upholding a prayer in the state legislature).  A bare majority of the justices, however, continue to adhere to the three-part Lemon test, for example, applying it to invalidate display of a Christmas crèche inside a county courthouse (County of Allegheny v. ACLU (1989)) but to uphold the display of a nativity scene in a public park when it was part of a Christmas season display that included nonreligious as well as Christian religious symbols of the holiday (Lynch v. Donnelly (1984)). 

Within the majority who adhere to the basic Lemon approach has been one justice – Justice O’Connor – who has suggested an alternative formulation to the three-part test, for considering challenged governmental use of religion (or religious symbols) in public places.  This is Justice O’Connor’s so-called “endorsement” test, which she first suggested in her opinion in Lynch.  Under this test, the First Amendment religion clause would prohibit governmental action that effectively endorsed religion in a way that would send a message that the government favored certain types of religion and that those persons who were not believers in those faiths were disfavored. 

Either the Lemon test or Justice O’Connor’s alternative endorsement test, when applied to the facts of the Court’s most recent decisions, can help explain the Court’s split decisions in these cases.   

The Kentucky case concerned the display of large, gold-framed copies of an abridged text of the King James version of the Ten Commandments, which were placed in the courthouses of two counties in Kentucky at the order of the county governments.  As described below, local government officials ordered the display – which was changed twice within a two-year period of time – during a time of great public controversy, generated by the state ACLU’s lawsuit challenging the display.  The majority of the justices found, correctly, that “the ostensible and predominant purpose” of the display was to advance religion and that it thus violated the neutrality demanded by the First Amendment, “there being no neutrality when the government’s ostensible object is to take sides.”  And as Justice O’Connor noted in her concurring opinion, the counties sought to convey “an unmistakable message of endorsement to the reasonable observer.” 

The Texas case concerned a six-feet-tall, three-feet-wide granite monument to the Ten Commandments erected on the grounds of the Texas Capitol in 1961, as a gift “to the people and youth of Texas” by the Fraternal Order of Eagles, described in the Court record as “a national social, civic, and patriotic organization.”  The Ten Commandments monolith is one of 17 monuments and 21 historical markers placed on the Capitol grounds to commemorate the “people, ideals, and events that compose Texan identity.”  (Other monuments include Heroes of the Alamo, Confederate Soldiers, the Texas Cowboy, a Tribute to Texas School Children, the Texas Pioneer Woman, Pearl Harbor Veterans, Korean War Veterans, Disabled Veterans, Texas Peace Officers, and a replica of the Statue of Liberty erected by the Boy Scouts.) (One might jokingly add that the only monument that seems to be missing is a statue honoring J.R. Ewing, of TV’s Dallas fame.)  The plurality opinion, by Chief Justice Rehnquist, saw the Ten Commandments monument as simply an “acknowledgement of the role played by the Commandments in our Nation’s heritage.”   

Justice Breyer, whose vote was the critical fifth vote necessary for the majority, called it “a borderline case” that was distinguishable from other instances where the Court has found Ten Commandments displays impermissible.  The “context” of this particular display – not only its placement on the Capitol grounds among all the other monuments and markers, but also a 40-year history of the monument being non-controversial – suggested to Breyer that, notwithstanding the Commandments’ religious significance, the monument conveyed “a secular moral message (about proper standards of social conduct)” as well as “a historical message (about a historic relation between those standards and the law).”  He contrasted the history of Texas’s “long-standing, pre-existing” monument, which was not challenged until the current lawsuit brought by Thomas Van Orden (an Austin resident who resented passing by the monument when he walked across the Capitol grounds), with that of the Ten Commandment displays in the two Kentucky counties, “where the short (and stormy) history of the courthouse Commandments’ displays demonstrates the substantially religious objectives of those who mounted them, and the effect this readily apparent objective upon those who view them.”   Thus, to Breyer, the key difference was that the Texas monument had been largely noncontroversial for four decades, while the Kentucky displays were part of  “a more contemporary state effort to focus attention upon a religious text” that was “certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.” 

Professor Marci Hamilton of Cardozo School of Law (whose views on the First Amendment religion clause I greatly respect) summed up nicely the Court’s current rule regarding religious displays on government grounds:  “What the rulings say is when a government overtly endorses a particular religious viewpoint or tradition, it’s unconstitutional.  Displays are OK if you don’t have an in-your-face declaration that the government stands behind Christian tradition.”  Unfortunately, thanks to Justice Breyer’s gullibility, the rule has been muddled by the erroneous decision in the Texas case.  Thus, to express the current rule more completely, we need to add a caveat, something like:  “…unless the display has been around for a few decades and its message is muted by surrounding it with other displays.”

America’s Would-Be Ayatollahs

The facts of both the Kentucky and Texas cases reveal unconstitutional attempts to have the government endorse the religious doctrine of the Ten Commandments – the kind of “in-your-face” endorsement of Christianity that Professor Hamilton correctly observed is forbidden by the First Amendment.  Behind the pretense of the Commandment’s “secular significance” – a claim that is pure bullshit, as discussed below – the real story behind both the Kentucky and Texas displays of the Ten Commandments is the story of arrogant Christian zealots trying to use the power of government to endorse the tenets of their peculiar religious faith. 

In Kentucky, the government officials who ordered the display of the Ten Commandments unquestionably were attempting to use the government displays to proselytize their religion.  The framed copies of the Ten Commandments were first put up in the summer of 1999 in two county courthouses at the order of county government officials.  In McCreary County, the council required “the display [to] be posted in a very high traffic area” of the courthouse; and in Pulaski County, amid reported controversy over the propriety of the display, the Commandments were hung in a ceremony presided over by the county Judge-Executive, who called them “good rules to live by” and who recounted the story of an astronaut who became convinced “there must be a divine God” after viewing the earth from the moon.  The judge was accompanied by the pastor of his church, who called the Commandments “a creed of ethics” and told the press after the ceremony that displaying the Commandments was “one of the greatest things the judge could have done to close out the millennium.”  In both counties, the hallway display was “readily visible to . . . county citizens who use the courthouse to conduct their civic business, to obtain or renew driver’s licenses and permits, to register cars, to pay local taxes, and to register to vote.” 

After the state ACLU chapter brought suit to enjoin the displays, the county governments changed them, twice, within a year.  Both changes were designed, to put it bluntly, to piss off the ACLU even more.  The first change, before the district court had ruled in response to the ACLU’s request for an injunction, expanded the display:  to the framed copies of the Commandments were added eight other documents, in smaller frames, each having a religious theme or excerpted to highlight a religious element.  (These included, for example, a passage from the Declaration of Independence highlighting the words “endowed by their Creator”; the national motto, “In God We Trust”; and a proclamation by President Reagan marking 1983 the Year of the Bible.)   After the district court entered a preliminary injunction ordering removal of the Ten Commandments display (and forbidding the erection of any “similar displays”), the counties installed another display, the third within a year, that included the framed copy of the Ten Commandments among ten framed documents of equal size, in a collection entitled “The Foundations of American Law and Government.”  The other nine documents were the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star-Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of “Lady Justice.”  Each had a statement about its supposed historical and legal significance.  The comment on the Ten Commandments read: 

“The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country.  Their influence is clearly seen in the Declaration of Independence, which declared that ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.  The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.”

As I discuss below, these claims are false:  the Ten Commandment have NOT “profoundly influenced” the formation of American law or the Declaration of Independence.  These absurd claims have no historical support; they are myths, or legends, propagated by certain true believers who’d like to think their religious beliefs have a secular significance that they utterly lack.  The background facts of the Kentucky display clearly show its “ostensible and predominant purpose” of advancing religion, as Justice Souter concluded in his opinion for the Court. 

Notwithstanding Justice Breyer’s attempt to distinguish the Texas display of the Ten Commandments as a “longstanding,” noncontroversial display, the history of the Texas monument reveals a purpose to advance religion that was just as strong as that of the Kentucky politicians’.  The full story of the Texas monument is told in Justice Stevens’ dissenting opinion.  “When the Ten Commandments monument was donated to the State of Texas in 1961, it was not for the purpose of commemorating a noteworthy event in Texas history, signifying the Commandments’ influence on the development of secular law, or even denoting the religious beliefs of Texans at the time.”  Rather, the donation had nothing particular to do with Texas:  it was one of over a hundred largely identical monoliths, and over a thousand paper replicas, distributed to state and local governments throughout the nation, over the course of several decades, by the Fraternal Order of Eagles.  The program was initiated by Judge E.J. Ruegemer, a Minnesota juvenile court judge and then-chairman of the Eagles National Commission on Youth Guidance, who believed that the Commandments would “inspire the youth” and curb juvenile delinquency by giving children “a code of conduct or standards by which to govern their actions.”  When Cecille B. DeMille, who at that time was filming the movie The Ten Commandments, heard of the judge’s project, he teamed up with the Eagles to produce the granite monoliths like the one displayed in front of the Texas Capitol and in various other courthouse squares, city halls, and public parks across the nation.  The Eagles, although ostensibly a nonsectarian organization, nevertheless requires its members to belief in the existence of a “Supreme Being” and regards the Ten Commandments as laws “handed down by God Himself to Moses more than 3000 years ago, . . . the basis of all our laws for living, the foundation of our relationship with our Creator, with our families and with our fellow men.”  Thus, as Justice Stevens concluded, although the desire to combat juvenile delinquency by providing some guidance to youth is “both admirable and unquestionably secular,” to achieve that goal through biblical teachings “injects a religious purpose into an otherwise secular endeavor.”   

As these background facts show, the Ten Commandments have had far more relevance to the history of Hollywood (and specifically, the history of the films of Cecille B. DeMille) than they have had to the history of Texas or to American law.  And, as Justice Stevens noted at the beginning of his dissenting opinion, “The sole function of the monument on the grounds of Texas’ State Capitol is to display the full text of one version of the Ten Commandments.  The monument is not a work of art and does not refer to any event in the history of the State.  It is significant because, and only because, it communicates the following message”: 

                        “I AM the LORD thy God.

“Thou shalt have no other gods before me.

“Thou shalt not make to thyself any graven images.

“Thou shalt not take the Name of the Lord thy God in vain.

“Remember the Sabbath day, to keep it holy.

“Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.

“Thou shalt not kill.

“Thou shalt not commit adultery.

“Thou shalt not steal.

“Thou shalt not bear false witness against thy neighbor.

“Thou shalt not covet thy neighbor’s house.

“Thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor’s.”

The Ten Commandments monument has nothing to do with Texas (unless, perhaps, one puts special emphasis on the last commandment’s ban on coveting thy neighbor’s cattle); unlike the other monuments on the state Capitol grounds, it does not commemorate any of the “people, ideals, and events that compose Texan identity.”  It simply, as Justice Stevens noted, transmits the message” “This State endorses the divine code of the ‘Judeo-Christian’ God.”

An Eleventh Commandment:

“Thou Shalt Not Distort History”

The argument advanced by defenders of government display of the Ten Commandments, in both the Kentucky and Texas cases – that the Commandments have a secular meaning, and that their display by government simply acknowledges their significance as part of the “foundations” of American law – is not only inconsistent with the facts of these cases but also unsupported by American legal history.  As I discussed in my previous essay (see “Supreme Nonsense – Part I”), that claim is based on an erroneous or naïve view of American history.  In fact, as I’ve noted there, the Commandments “had virtually nothing to do with the development of our conception of law, and still less to do with our substantive laws – including those laws (such as the prohibitions of murder or theft in our criminal codes) that seem to parallel those in the Decalogue.”  Indeed, the customary laws of the pagan Anglo-Saxons – the so-called “dooms” codified by the Anglo-Saxon kings – are much more relevant to American law than are the Ten Commandments, which arguably are not only irrelevant to but also inconsistent with our legal and constitutional system.  As I noted in that previous entry, the authoritarianism of the Ten Commandments is quite literally foreign to our conception of law, with the legitimate powers of government deriving from “the consent of the governed.”  

Moreover, the assertion made by the Kentucky counties, that the Ten Commandments had a “profound influence” on the Declaration of Independence, divorces the words of the Declaration completely from their historical context.  As I explain in Chapter Two of my book, The Constitutional Thought of Thomas Jefferson (1994), Jefferson’s references both to “the laws of nature and of nature’s god” and to “the Creator” in his draft of the Declaration were intended to put the philosophy of rights of the document on the surest possible ground – the “science” of the 18^th-century Enlightenment, which saw human rights as based on objective truths about human nature – and not on any particular religious belief system.  Jefferson, like many other American Revolutionaries, was a deist – not a believer in the God of Moses.  Even if he were a Christian in the traditional sense, he certainly would not want to limit the philosophical arguments of the Declaration to arguments derived from the authoritarianism of a particular religious tradition:  he sought, as he later explained, to express the consensus of all “American whigs,” that is, the Patriots who supported American independence, and to make their arguments persuasive to “a candid world,” an audience that included not only deists but also atheists, such as the philosophes of France whose opinion might help secure a much-needed political alliance for the new American nation in its struggle for independence against Britain. 

Interestingly, in the Kentucky case, the two county governments backed away from their original assertion that the Commandments provide “the” moral background of the Declaration of Independence.  By the time the case was argued before the Supreme Court, they merely claimed that many of the Commandments “regarding murder, property, theft, coveting, marriage, rest from labor and honoring parents are compatible with the rights to life, liberty, and happiness.”  (McCreary Country v. ACLU, Opinion for the Court, page 25, note 21.)  Apart from erroneously quoting from the Declaration of Independence (it’s not a right “to happiness” but to “pursue happiness”), this modified argument is absurd.  Not only does it distort the meaning of the Declaration, but it also fails to show how the Ten Commandments is any more relevant to the “moral background” of the Declaration as are, say, the “dooms” of the Anglo-Saxon kings of England or, for that matter, the teachings of the Koran. 

Chief Justice Rehnquist, in his opinion for the plurality of the justices in the Texas case, acknowledged that the Ten Commandments are religious but added “Moses was a lawgiver as well as a religious leader” and that the Commandments “have an undeniable historical meaning.”  Those propositions may be true, by themselves, but it’s simply not true that Moses was a “lawgiver” for Americans, or that the Commandment’s “historical meaning” have any reference to American law.  Rehnquist’s opinion includes a brief travelogue of Washington, D.C. federal government buildings – the Supreme Court’s own chamber, the Main Reading Room of the Library of Congress, the National Archives building, and others – in which Moses and/or the Ten Commandments are depicted, which to Rehnquist shows a secular meaning.  In his dissenting opinion in the Texas case, Justice Souter gives a devastating rebuttal to Rehnquist’s arguments – and a much more sophisticated travelogue -- showing how all the displays mentioned by Rehnquist are readily distinguishable from the Texas Ten Commandments monument.  For example, the frieze in the Court’s own chamber presents Moses among history’s other great lawmakers, giving no especial prominence either to Moses or to the Commandments (which are depicted in a way that shows only some Hebrew text); Moses and St. Paul are included among sixteen statues in the Library of Congress, representing religion, while the other fourteen (which includes Beethoven, Shakespeare, Michelangelo, Columbus, and Plato) represent nonreligious categories such as philosophy, art, history, commerce, science, law, and poetry – different categories of human knowledge.  As Souter shows, it’s ludicrous to conclude from such evidence that the Texas monolith somehow may be excused from its obvious purpose to endorse particular religious beliefs. 

Justice Scalia, in his concurring opinion in the Texas case, said he’d favor an Establishment Clause jurisprudence that would allow government to favor religion generally, “honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.”  But it is not possible to “venerate” the Ten Commandments “in a non-proselyetizing manner”: as noted above, they are explicitly commands from God.  (Consider the appearance of the Texas monument, which began with the words, written in extraordinarily large letters, “I AM the LORD thy God.”  As Justice Stevens noted in his dissenting opinion in the Texas case, the Commandments have “not just a religious, but an inherently sectarian, message”; such “[a]ttempts to secularize what is unquestionably a sacred text defy credibility and disservice people of faith.”)   

Moreover, it is impossible to post the Ten Commandments without deciding upon a text to use, for as Justice Stevens also observed, “There are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith” – not only does the Jewish version of the Commandments differ from the Christian version, but different Christian denominations recognize different versions – differences that may be of enormous religious significance “to a pious and learned observer.”  When Justice Scalia conceded in a footnote to his dissenting opinion in the Kentucky case that the government could not endorse “a particular version of the Decalogue as authoritative,” he in effect conceded that any government display of the text of the Commandments was impermissible, as it’s impossible to display the text without selecting a particular version (as, for example, the Kentucky counties’ display selected the King James version).   

Dissenting in the Kentucky case, Scalia argued that “historical practices” demonstrate that the First Amendment’s prohibition of government “establishment” of religion was not meant to prohibit the government from espousing submission to “God,” when God is conceived as the monotheistic entity consistent with “the three most popular religions in the United States, Christianity, Judaism, and Islam” – all of which, he added, believe the Ten Commandments to be given by God to Moses, as divine prescriptions for a virtuous life.  Scalia is mistaken, both with regard to the Commandments themselves – which have a specific religious content peculiar to Judaism and which certain Christian denominations have reinterpreted to suit their own views of God – as well as with regard to American history. 

As Justice Souter noted in his opinion for the Court in the Kentucky case, Justice Scalia’s argument about the original understanding of the First Amendment “is flawed from the outset by its failure to consider the full range of evidence showing what the Framers believed.”  (Souter, a justice who often disregards not only the original understanding of the Constitution but also its text, nevertheless is at his best when discussing the historical background of the First Amendment religion clause, as his prior opinions – particularly his fascinating exchange with Justice Thomas in Lee v. Weisman.)  At the time of the First Amendment’s adoption, Americans were divided – just as they are today – over the meaning of the religion clause, particularly with regard to government’s obligation to be neutral respecting religion.  Some were strict separationists, others were more accommodating to government recognition of religion, while still others sought for government encouragement of Christianity.   Significantly, when Congress framed the language of the First Amendment, it actually expanded the scope of the ban on establishment, from Madison’s original proposal (which would have prohibited establishment of “any national religion”) to a broad prohibition on “any law respecting an establishment” of religion.  As Souter noted, Thomas Jefferson as president interpreted that language to mean that neither Congress nor the president could issue proclamations calling for days of prayer or thanksgiving (as those are religious exercises).  And Madison not only opposed the use of public revenues to fund churches, as Souter also noted, but also the practice of both houses of Congress in employing chaplains and in starting each legislative day with a prayer (the practice that the modern Court upheld in Marsh v. Chambers).  

As Justice Souter correctly noted, Justice Scalia’s view means “that government should be free to approve the core beliefs of a favored religion over the tenets of others, a view that should trouble anyone who prizes religious liberty.”   Besides being quite anti-libertarian, that view also distorts history, as Souter added:  “Certainly, history cannot justify it; on the contrary, history shows that the religion of concern to the Framers was not that of the monotheistic faiths generally, but Christianity in particular, a fact that no member of this Court takes as a premise for construing the Religion Clauses.”

The Weakness of Justice Thomas’s Jurisprudence

               In my previous entry “More Supreme Nonsense” (June 24) – which applauded Justice Clarence Thomas’s opinions in the medical marijuana and eminent domain cases – I noted that in choosing a new chief justice for the Court (if and when Chief Justice Rehnquist announces his retirement), President Bush could do no better than elevating Justice Thomas to Chief.  I still hold by this opinion, although – as I have previously conceded, whenever I discuss Justice Thomas’s jurisprudence – Thomas is far from being perfect.  Although Justice Thomas’s greatest asset, in my view, is his ability to interpret the Constitution contextually – for no other justice on the Court today understands the importance of context as much as Thomas does – his contextualism is limited by his steadfast adherence to “originalist” interpretation of the Constitution’s provisions.  Justice Thomas draws no distinction between the power-granting clauses of the Constitution, such as the Commerce Clause, and the power-limiting, or rights-guaranteeing clauses, such as the First Amendment religion clause.  By failing to thus distinguish power clauses from liberty clauses, Thomas tends to read the latter too narrowly – far more narrowly than full adherence to contextualism would demand.  (For more on this, see my essay on “Intepreting the Constitution Contextually,” published in Navigator (October 2003).)  

Although Thomas’s devotion to the original meaning of constitutional provisions is laudable when it comes to the power-granting clauses of the Constitution, both the purpose of the Constitution and its text (particularly the Ninth Amendment and the broad substantive protections of the rights to life, liberty, and property found in the due process clauses of the Fifth and Fourteenth Amendments) require us, in interpreting the power-limiting and rights-guaranteeing clauses of the Constitution, to go beyond their original meaning.  That’s especially so with regard to the First Amendment religion clause, which the Founders understood as a protection of a natural right – an individual’s freedom of conscience – that exists independently of positive law, including the text of the Constitution.  With regard to the scope of religious liberty – including the First Amendment’s prohibition on laws “respecting an establishment of religion” – judges ought not to be bound by the original meaning.  This is one area where left-liberals’ notion of “a living Constitution” is relevant and apt.  As Justice Stevens noted in his dissent in the Texas case, “I recognize that the requirement that government must remain neutral between religion and irreligion would have seemed foreign to some of the Framers; so too would a requirement of neutrality between Jews and Christians. . . . Fortunately, we are not bound by the Framers’ expectations – we are bound by the legal principles they enshrined in our Constitution.  . . . As religious pluralism has expanded, so has our acceptance of what constitutes valid belief systems.”  So, just as the Framers’ generation held that government ought not discriminate among Christian sects, today we ought to prohibit the government from discriminating against atheists, polytheists, and other types of believers and non-believers alike. 

In his concurring opinion in Van Orden v. Perry, Justice Thomas urges his colleagues to “return to the original meaning” of the Establishment Clause.  As he understands it, that “original meaning” would result in a limit on governmental power with extremely narrow scope.  First, Thomas does not recognize that the Fourteenth Amendment was meant to incorporate both aspects (both the guarantee of free exercise and the prohibition of government establishment) of the First Amendment religion clause and so apply them against the states – although he does concede that the incorporation of the Free Exercise Clause could limit the power of states to establish religions.  (Thomas apparently does not realize that his understanding of the First Amendment religion clause as two distinct “clauses” – the “Establishment Clause” and the “Free Exercise Clause” – is itself an invention of the Court’s modern jurisprudence, for the First Amendment, grammatically, has just one religion clause, with two phrases expressing both its aspects, which were originally understood as two sides of the same coin.)  Moreover, Thomas asserts that the original meaning of the word establishment “necessarily involve[d] actual legal coercion,” an assertion that’s not as strongly supported by the full historical record as Thomas assumes.  When it comes to the First Amendment religion clause, Thomas isn’t a very good historian.  

Thomas’s narrow view of the First Amendment’s religion clause, and specifically its prohibition on government “establishment” of religion, also is inconsistent with the context of the First Amendment itself – a point observed, ironically, also by Justice Stevens (who’s not otherwise a contextualist) in his dissenting opinion in Van Orden v. Perry.  As Stevens notes, under the “coercion” view, “the Establishment Clause would amount to little more than a replica of our compelled speech doctrine” and would permit explicit state endorsements of religious orthodoxies of particular sects, “actions that lie at the heart of what the Clause was meant to regulate.”  For example, the government could take out TV ads lauding Catholicism as the only pure religion: “Under the reasoning endorsed by Justice Thomas, those programs would not be coercive because the viewer could simply turn off the television or ignore the ad” – just as Thomas had noted that “[t]he mere presence of the [Texas] monument . . . involves no coercion” because the passerby “need not stop to read it or even to look at it.”  As revealed by Stevens here, Thomas’s flaw is his failure to recognize the unique status that government and all the actions of government (even mere displays on public property) have in our society.  It’s an unfortunate gap in Thomas’s libertarianism.

Justice O’Connor’s Legacy

                Justice O’Connor will not be easy to replace, without significantly altering the ideological “balance” of the Rehnquist Court (which is why the battle over confirming her successor in the Senate is likely to be especially nasty).  That’s because she’s not been easy to typecast:  although she votes with the Court’s “conservatives” on federalism questions (consider for example her splendid dissenting opinion in the Court’s recent take on Congress’s powers under the Commerce Clause in the medical marijuana decisions), she votes with the “liberals” in some important areas – among them, abortion rights (her vote has been critical in preserving the basic holding of Roe v. Wade, that a pregnant woman’s decision to have an abortion is part of the “right to privacy” protected by the Constitution), affirmative action (her compromise position in the University of Michigan cases in 2003 carried the day), and also government establishment-of-religion.  Indeed, it is in cases involving government establishment of religion that Justice O’Connor has made one of her two most original contributions to modern constitutional law, in my opinion.  (The other area has been another aspect of the First Amendment, its free speech clause, specifically as applied to copyright law:  O’Connor’s opinion for the Court in Harper & Row v. The Nation (1985) has settled, decisively in my view, the question whether a First Amendment free-speech claim can provide a defense to liability for copyright infringement.  O’Connor’s decisive answer was an emphatic, NO! – that copyright law, by protecting an author’s property rights in his original works of expression, also serves the core value of the First Amendment, freedom of expression; in other words, the protection of intellectual property rights, pursuant to Congress’s powers under the Copyright and Patents Clause of Article I, Section 8 is not inconsistent with the freedoms protected by the First Amendment.  Put another way, Justice O’Connor’s copyright jurisprudence has reminded us that the First Amendment protects freedom of speech, not “free” speech.) 

Justice O’Connor has been called a “pragmatist” or a “centrist” who does not comfortably fit within either of the categories of “liberal constitutionalism” or “conservative constitutionalism.”  Professor Marci Hamilton, who clerked for O’Connor during the 1989-90 term, had this to say about the justice:  “She has her own internal moral compass, and she’s not sitting around waiting to see what everyone else things before she makes up her mind.  That’s how she wound up in the center of the court.  We laugh about it because she is now called liberal.  But that’s not who she is.”  (“O’Connor’s voice made her pivotal figure,” Knight Ridder Newspapers, July 2.) 

O’Connor’s penchant for independent thinking helps explain her original contribution to First Amendment religion clause jurisprudence:  her “endorsement” test.  In her concurring opinion in the Kentucky case, she explained the reasoning behind her approach, grounding it in James Madison’s guiding principle – that “[t]he Religion … of every man must be left to the conviction and conscience of very man” (citing Madison’s Memorial and Remonstrance Against Religious Assessments).  (Incidentally, her opinion in this case confirms that O’Connor has been at her best, jurisprudentially speaking, whenever she quotes meaningfully from Madison; she also did so in her superb opinions in the Court’s recent medical marijuana and eminent domain cases.)  The First Amendment religion clauses “protect adherents of all religions, as well as those who believe in no religion at all,” O’Connor observed.  “When the government associates one set of religious beliefs with the state and identifies non-adherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship,” she added: 

“In the marketplace of ideas, the government has vast resources and special status.  Government religious expression therefore risks crowding out private observance and distorting the natural interplay between competing beliefs.  Allowing government to be a potential mouthpiece for competing religious ideas risks the sort of division that might easily spill over into suppression of rival beliefs.  Tying secular and religious authority together poses risks to both.”

This explanation, when considered along with its full implications, nicely rebuts Justice Thomas’s insistence on limiting the prohibition on government establishment to direct “coercion.”  Justice O’Connor’s explanation for her endorsement test shows why a coercion standard would be insufficiently libertarian.   

Today, it seems as though everyone has his or her own “litmus” test about what kind of justice President Bush should appoint to succeed Justice O’Connor.  My own suggestion is this:  someone who, like O’Connor, appreciates the fact that the essential purpose of the First Amendment religion clause (in both its non-establishment and free-exercise aspects) is to safeguard, and to maximize, the freedom of the individual mind. 

      | Link to this Entry | Posted Tuesday, July 5, 2005 | Copyright David N. Mayer