In the perennial debates about church-state entanglement, I have often argued against the strict separationists—those who regard any religious expression within a public institution as tantamount to government-sanctioned religion.
This rigid interpretation of the establishment clause has led to fairly obvious discrimination against religious beliefs and in favor of secular ones, and to the suppression of religious speech. State universities have denied funding to student publications with religious content; high school valedictorians have been forbidden to mention God in graduation speeches; a first-grader was not allowed to participate in a classroom reading exercise because he had selected a text from a book of Bible stories.
Given such practices, many conservatives' complaints about militant secularists seeking to banish God from the public square seemed reasonable enough.
These days, though, there is so much God in the public square that you can hardly take a step without bumping into him, or at least his militant champions. And increasingly, I find myself on the other side of the divide.
Maybe the last straw was the Ten Commandments—or rather, the 5,000-pound granite sculpture of them installed in the Alabama State Judicial Building by the state Supreme Court's Chief Justice, Roy Moore. Maybe it was the spectacle of Moore playing the martyr before the cameras when he defied a federal court order to remove the monument. Or maybe it was the conservative pundits earnestly claiming that the Ten Commandments do not represent a specific religion but rather general morality, or else the "Judeo-Christian philosophy" (apparently somehow distinct from religion) that is the bedrock of our laws.
Some of Moore's defenders have indignantly pointed out that the United States Supreme Court building has a frieze depicting Moses with the two tablets of the Ten Commandments. But that proves only that, in fact, current legal doctrine does not prohibit all mention of God or all things Judeo-Christian in public spaces. It's all in the context: On the Supreme Court frieze, Moses appears in the company of history's other lawgivers, such as Confucius and Hammurabi.
In other courthouses, Ten Commandments plaques are featured along with historical documents such as the Magna Carta. "Roy's Rock," as the Alabama monument came to be known, loomed majestically alone as a symbol of Judeo-Christian supremacy—a symbol meant, in Moore's words, to convey the message that the Ten Commandments are the "moral foundation" of our law.
Are they? Only three of the commandments prohibit actual criminal conduct: killing, stealing, and bearing false witness. "Honor thy father and thy mother" is a fine principle, but it is not the law of the land. Neither is "Thou shalt have no other gods before me" and "make unto themselves no graven images." If we had a system literally based on biblical law, it would look something like the sharia code of modern-day Islamic theocracies.
Of course American culture is steeped in Judeo-Christian heritage. But our law has its roots in the secular Western tradition, from the Magna Carta to ancient Greece and Rome. Not that Roy Moore would know much about that: In a little-noticed ironic moment, he complained on Fox News' Hannity and Colmes that a statue of "Venus, the Greek goddess of justice" stood unmolested in front of the federal courthouse. (That would be Themis. Venus is the Roman goddess of beauty and love.)
Some people who agree the Ten Commandments monument is unconstitutional, such as the Boston civil liberties attorney Harvey Silverglate, are also inclined to believe that the issue wasn't worth the fight. Yet the dispute isn't just about symbolism; it is relevant to current debates about religion, law, and individual rights.
Last year, in a ruling denying child custody to a lesbian mother, Moore described homosexuality as "abhorrent," citing biblical passages as well as Alabama's sodomy law. It's no accident that Moore's supporters often mention the federal order to remove the monument in the same breath as the Supreme Court ruling overturning sodomy laws.
The connection does exist. On Fox News, Bill O'Reilly fulminated against the "agenda" of "secularists" who oppose the monument: "They want total personal freedom….They want legalized drugs, gay marriage, soft criminal penalties, and rehabilitation in prisons instead of punishment….The message is that the USA should be a place where all non-criminal conduct is permitted and moral judgments about right and wrong should never be made."
In fairness, government has been entangled with some ostensibly secular ideas that are rooted in quasi-religious zeal no more rational than that of the fundamentalists—from the nature-worshipping environmentalism dished out in many public schools to the radical feminism that permeates many federally funded domestic violence programs.
The problem is that champions of God in the public square don't just want religious beliefs to be a part of public discourse on an equal footing with secular ones. They often equate criticism of religiously based ideas with religious bigotry.
This summer, Senate Democrats blocked the nomination of Alabama Attorney General William H. Pryor Jr. to the U.S. Court of Appeals for the 11th Circuit, primarily due to his anti-abortion views. (Pryor had described Roe v. Wade as an "abomination.") Conservative activists accused the Democrats of anti-Christian bigotry and even ran an ad showing a "Catholics need not apply" sign over a courthouse door.
Of course, there are plenty of pro-choice Catholics, including some of the Democrats who opposed Pryor's confirmation; the argument, however, is that an abortion-rights litmus test effectively disqualifies "serious" Catholics from federal judgeships.
Such a litmus test may or may not be wrong, but there is nothing new about politicians opposing judicial nominees because of their positions on issues. Is that a form of "bigotry" if such positions happen to be religiously motivated? Only if religious ideas are being placed into a specially protected category.
There is a streak of anti-religious bigotry among the so-called cultural elites—the tacit attitude that people with strong religious views must be ignorant, gullible, and narrow-minded. But a streak of religious bigotry is also alive among those who advocate a greater public role for religion.
In one recent poll, 58 percent of Americans said that one must believe in God in order to be moral. This form of prejudice is often openly promoted on the right. (Just watch Sean Hannity badger the atheist guest punching bags on Hannity and Colmes.) To some extent, it is also fed by the fashionable, increasingly bipartisan political rhetoric about religion as the foundation of morality.
As an agnostic, I welcome religious expression in the public square. But the endorsement of religion by the state, be it the exclusionary symbolism of the Ten Commandments or even the political promotion of a broad, non-sectarian belief in God, is something that should have no place in America. Pace Bill O'Reilly, this does not mean that "moral judgments about right and wrong should never be made"; obviously, private individuals can and should make them all the time.
In a way, the conservatives who lament the removal of the Ten Commandments from the courthouse have fallen into a classic "liberal" trap: the assumption that anything worth having is entitled to support from the government.