Religious Displays and the Establishment Clause
The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Of particular interest is the First Amendment’s establishment clause, which prohibits the government from passing laws “respecting an establishment of religion.” It follows that the U.S. government cannot fund or otherwise support any particular religion through its laws. Due to the history preceding America’s founding, separation between church and state was a critical element for the new country. However, although this has always been the case in theory, it has been inconsistently followed. There is a long history that continues to this day of the United States allowing the presence of religious elements in its government and traditions, from the Pledge of Allegiance to American currency. From the later twentieth century onward though, there has been a concerted push to disentangle religion from the American government.
Two 2005 cases before the Supreme Court illustrate the difficulties in doing this. Van Orden v. Perry and McCreary County v. American Civil Liberties Union of Kentucky both concerned displays of the Biblical Ten Commandments outside of government buildings. These cases were viewed by many as being quite similar, but were decided by different 5-4 rulings released the same day, with Justice Breyer in each case casting the deciding vote. Breyer’s deciding factor, and thus the Supreme Court’s, was the historical roots of one display of the Ten Commandments in Van Orden v. Perry compared to the relatively recent erection of others in McCreary County v. American Civil Liberties Union of Kentucky. The intensely subjective nature of these two rulings illustrates the difficulty of trying to allow the government to facilitate religious expression in certain instances but not others. While an absolutist interpretation against any association between the government and religion might be desired by some, it would be impossible to implement because of how thoroughly enmeshed religion is in much of American society and history. Rather, the practice of taking into account the historical nature of a religious display both protects the monuments of the past while allowing for a stricter interpretation of the separation between church and state in the present.
In what follows, I will first give a historical recap about the origins of a desire for freedom of religion in what became the United States and stress the central status of the First Amendment. Then, I will explore the difficulties that the strongly Christian character of the United States for much of its history has posed for the First Amendment, before discussing the odd gray zone prompted by the contradiction between past conventions and what is deemed acceptable current practice, best exemplified by the twin 2005 cases of Van Orden v. Perry and McCreary County v. American Civil Liberties Union of Kentucky. I will then address the counterargument to the current framework for deciding these cases, voiced by Justice Antonin Scalia in his dissent against McCreary County v. American Civil Liberties Union of Kentucky. In conclusion, I will argue that the current framework used regarding religious displays and the establishment clause, which takes into account the history of a religious display, although subjective and difficult to define, is the best way to handle these cases. It is the best way to ensure that the law remains flexible enough to prevent abuse.
Religion. Throughout recorded human history, it has had a significant effect on how we act and operate. But religion is a tricky thing. Especially when a country attempts to impose a state religion, it often results in the persecution of religious minorities who fail to conform. Many of the first settlers to arrive in America were fleeing from religious persecution, seeking to find a place of more tolerance in the Thirteen Colonies. It is no coincidence that America has historically been a relative beacon of religious freedom for two reasons. One, those who fled persecution understandably were wary of the imposition of any religion. Second, due to the heterogenous religious nature of the colonies, any attempt to impose a state religion was a nonstarter. Of course, certain colonies had their own predominant religions at first, such as Quakerism in Pennsylvania, Catholicism in Maryland, or Puritanism in Massachusetts. However, what is striking is the degree to which religious pluralism existed across the English colonies in America. In Europe, on the other hand, religious nonconformists found few places of refuge from oppressive governments.
One of the chief concerns of America’s Framers was thus that church and state should be kept separate. They had seen the damaging effect that religious strife had caused in Europe over the centuries, and had no wish to see that repeated on American soil. Thus, it is no coincidence that the very first amendment to the United States Constitution guarantees freedom of religion and speech. As Thomas Jefferson said of it, “the First Amendment has erected a wall between church and state,” meaning that there can be no crossing over between the two. Jefferson went on to add “That wall must be kept high and impregnable.” 1 And throughout American history, there has been a general effort on the part of the government (at least in theory) to honor this pledge. The United States has never had an official religion. This sets it apart from other countries such as England, Denmark, and Egypt, each of which has a defined state religion.
However, although the United States has never had a state religion, it has been a predominantly Christian country for much of its history. As such, there has been a sort of implicit endorsement of Christianity in how it operates. A few prominent examples illustrate this, such as the presence of the phrase “in God we trust” on U.S. currency, the phrase “one nation under God” in the Pledge of Allegiance, and the president traditionally placing his hand on a Bible at his swearing in ceremony. Beginning in the middle of the twentieth century, as the country became more religiously diverse, an effort grew to more clearly separate the government from religion, as the founders had intended. What made this difficult is that the United States at the federal and state level had for decades allowed religious instruction in public schools and given aid to parochial schools. 2
Reflecting this growing sentiment, when the Supreme Court first considered the issue of government aid to religion in earnest in 1947 it echoed Jefferson’s words about the “high and impregnable wall” that must be kept between church and state. In the ensuing decades, the majority of the Court was committed to making this strict separation between church and state a reality. “The Court thus developed Establishment Clause doctrines that limited religion’s presence in government –such as in forbidding prayers in public schools– and government's presence in religion –such as in limiting aid to parochial schools.” 3 These cases were often very contentious, and have continued to the present day. The central reason for that is that in many situations the interpretation of a reasonable separation between church and state is murky at best. For example, how can U.S. currency, the Pledge of Allegiance, and the Presidential Oath of Office all contain explicit Christian references, but prayer not be allowed in public schools?
Two similar cases from 2005 illustrate this phenomenon quite well. First is the case of Van Orden v. Perry. The central issue was whether or not a monument of the Ten Commandments on the grounds of a state capitol building violates the First Amendment’s establishment clause, which prohibits the government from passing laws “respecting an establishment of religion.” There is a monument of the Ten Commandments on the grounds of the state capitol building in Texas, which Texas resident Thomas Van Orden thought represented an unconstitutional government endorsement of religion. He argued that the monument violated the First Amendment’s establishment clause, since in his view it amounted to the endorsement of a religion. Both the district court and Fifth Circuit Court of Appeals ruled against Orden, arguing that the monument “served a valid secular purpose and would not appear to a reasonable observer to represent a government endorsement of religion.”
In a 5-4 decision delivered by Chief Justice William H. Rehnquist, the Supreme Court found that the monument did not run afoul of the First Amendment’s establishment clause. A plurality consider the Texas monument “part of the nation's tradition of recognizing the Ten Commandments’ historical meaning.” Even though the Ten Commandments are religious, the plurality argued, “simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause.” 4
However, the case of McCreary County v. American Civil Liberties Union of Kentucky offers an interesting contrast. There were two central issues. One, does a display of the Ten Commandments in public schools and in courthouses violate the First Amendment’s establishment clause? Two, assuming that the display’s purpose was to advance religion, was that sufficient justification for their invalidation? The American Civil Liberties Union of Kentucky sued three Kentucky counties in federal district court after they were found to be displaying framed copies of the Ten Commandments in courthouses and public schools. The American Civil Liberties Union argued that the displays violated the First Amendment’s establishment clause, an argument that both the district court and the Sixth Circuit Court of Appeals ruled in favor of.
In a 5-4 decision delivered by Justice David Souter, the majority of the justices agreed that the Ten Commandments displays violated the establishment clause because the intent behind their placement was the advancement of religion. The Supreme Court argued that a reasonable observer would have thought that the displays indicated the government was endorsing religion. Interestingly, each of these displays did this in a different way. The first display presented the Ten Commandments alone, while the second display showed them alongside additional religious passages. The third included the Ten Commandments in an exhibit on the “Foundations of American Law,” which the Supreme Court interpreted as a transparent attempt “for any way to keep a religious document on the walls of courthouses.” 5
That last point of the Supreme Court’s decision in McCreary County v. American Civil Liberties Union of Kentucky is especially intriguing. Although in this case the Court dismissed an attempt by Kentucky to display the Ten Commandments under the justification of them being foundational to American law, in Van Orden v. Perry this justification appeared to be acceptable. In Van Orden v. Perry, the plurality ruled that the monument of the Ten Commandments outside the Texas state capitol was “part of the nation's tradition of recognizing the Ten Commandments’ historical meaning.” However, the Court did not view the displays from McCreary County v. American Civil Liberties Union of Kentucky as historical in nature. Put more simply, the distinction appears to be that whereas the monument in Van Orden v. Perry represented religion as a part of history (i.e. “tradition”), the displays from McCreary County v. American Civil Liberties Union of Kentucky represented the attempted endorsement of a particular set of religious beliefs. It is worth noting here that the monument outside the Texas state capitol dated to 1961 and had been there for several decades. In contrast, the displays in Kentucky were much more recent. The monument outside the Texas state capitol could be considered historical, because of its age. Regardless of the original intent, it had become more or a civic fixture than a religious one. However, the Kentucky displays could not be, and the intent behind placing them was revealed to be religious in nature.
It should be stressed that each of these cases was decided very narrowly, and that reasonable minds can differ on the best course of action. Justice Antonin Scalia, for example, argues in his dissent against McCreary County v. American Civil Liberties Union of Kentucky that the past allowance of an action should thus allow the present allowance of an action. Hewing to his Originalist interpretation of the Constitution, he says that the Framers were very religious people, and that they did not intend to create an irreligious society. He cites several speeches by Founding Fathers and Presidents like George Washington, John Adams, Thomas Jefferson, and James Madison, each of which makes explicit reference to God and religion in general. Scalia also makes note of the presence of religion in several aspects of American life, from the Presidential Oath of Office “so help me God,” to sessions of the Supreme Court which continue to open with the prayer “God save the United States and this Honorable Court,” to the Pledge of Allegiance and American coinage bearing the motto “In God We Trust.” With all these examples cited, Scalia pointedly declares “With all of this reality (and much more) staring it in the face, how can the Court possibly assert that ‘the First Amendment mandates governmental neutrality between … religion and nonreligion?’” 6 Scalia draws no distinction between what is “historical” and what is not. For him, the meaning of the Constitution cannot change over time, even if other judges’ interpretations of it have.
Perhaps then in Justice Scalia’s dissent we have a workable framework for deciding whether a religious monument or display violates the First Amendment. If it has historically been permissible, it should be deemed permissible in the present. But there are limitations to this philosophy, however orderly it might seem. For, what about the potential for abuse? For example, what if a litigant claims something is to commemorate history, when the intent is clearly to promote religion? It should be noted that the death knell for the displays in the McCreary County v. American Civil Liberties Union of Kentucky case was not the displays by themselves, but that they were intended for the promotion of religion itself, even though their defenders claimed otherwise in court. A more subjective approach to these cases regarding the establishment clause, allows for the ability to discern intent. A more absolutist view on the other hand, as Scalia advocates for, is rife with potential for abuse.
The United States is a fairly young nation, and whether something can be considered historical or not is often subjective. As it is currently, the United State is in an odd gray zone prompted by the contradiction between past conventions and what is deemed acceptable current practice. Even if something that is overtly religious continues to exist and be funded by the government due to past precedence, that does not mean that the government is currently willing (or thinks it is allowed to) fund a new overtly religious object or practice. Confusingly, the defining characteristic behind whether something is allowed or not has more to do with its age than its merits as being religious or nonreligious. The acceptance of legacy religious practices and displays in the U.S. government, but not new ones, can perhaps best be thought of as an extreme case of the grandfather clause. Since these older practices and displays date back to a more lenient time in U.S. jurisprudence regarding the government’s connection with religion, it is okay to maintain them in the name of “tradition” or “history.” However, the introduction of new religious practices or displays is not acceptable.
It might initially appear that the current framework used regarding religious displays and the establishment clause is simply too subjective and thus very difficult to define. However, a closer analysis reveals that the current approach which takes into account the historicity of a religious display is the best way to ensure that the law remains flexible enough to prevent abuse. As stated before, America’s Framers were very concerned about keeping church and state separate. And although in the past the courts were more lenient towards religious displays, the current system is more in line with what the establishment clause actually says. The First Amendment’s establishment clause clearly states that the government is forbidden from passing laws “respecting an establishment of religion.” Past permissiveness should not infringe on the current execution of the law.
Yet we should not try to deny our history either. The United States has been a predominantly Christian country for much of its history, and our traditions and values reflect that. One cannot efface religion from the United States’ identity without fundamentally changing its character as a nation. Yet as the country becomes more and more religiously diverse, we must allow room for nuance. We can maintain the Christian fixtures of the past while refusing to permit new religious impositions in the present. Flexibility is how we can best honor our country’s traditions and prepare for the future.
References
1 Erwin Chemerinsky. “Why Separate Church and State?” Oregon Law Review, vol. 85, no. 2, 2006.
2 Martha C. Nussbaum. Liberty of Conscience: In Defense of America’s Tradition of Religious Equality. New York, 2008.
3 Erwin Chemerinsky. “Why Separate Church and State?” Oregon Law Review, vol. 85, no. 2, 2006.
4 “Van Orden v. Perry” Oyez, https://www.oyez.org/cases/2004/03-1500. Accessed 12 Apr. 2022.
5 “McCreary County v. ACLU of Ky” Oyez, https://www.oyez.org/cases/2004/03-1693. Accessed 12 Apr. 2022.
6 McCreary County v. ACLU of Ky, 545 U.S., No. 03-1693 (2005) (Antonin Scalia dissenting).