Take Two Tablets and Call Us Next Session

A fair split on religious symbols


Last week, the Supreme Court stepped into the long-running and often acrimonious dispute about the display of religious symbols on public property. In two rulings that drew mixed reactions from right and left, the high court held that a Ten Commandments display at the Texas State Capitol was constitutional, while another one in a Kentucky courthouse was illegal. The distinction focused on whether a religious monument is intended and perceived as state endorsement of religion.

Some decried these decisions as convoluted and contradictory. In my view, the court struck a difficult and largely proper balance in a difficult area rife with zealotry and extremism—as some of the response to the rulings makes clear.

Intolerance and zealotry can be found on both sides of the church-state debate. Some proponents of strict separation would expunge every last reference to religion from public life. They will go to bat to get Los Angeles County to remove from its seal tiny church crosses surrounded by other symbols of county history. They will even ban religious messages on tiles contributed by parents to a memorial for victims of the Columbine High School shootings. Such crusades only fan the flames of demagogic complaints about the "persecution" of religion in America.

Last week, the extremism was most apparent in such complaints: In a Fox News discussion, conservative commentator Fred Barnes lamented that the ruling against the Kentucky displays amounted to "suppression of religion," and even the more liberal Morton Kondracke inquired, "Are we an antireligious country?" But in an antireligious country, religion is officially rejected, not simply denied official approval. To have no display of the Ten Commandments at the state capitol is not the same as to install a plaque bearing the Karl Marx quote, "Religion is the opium of the people"—and not the same as to close down churches and ban religious practice in private homes.

For an example of a truly extreme mindset, one need look no further than the dissent in the Kentucky case by Supreme Court Justice Antonin Scalia.

Scalia is brutally frank in his support for government endorsement of religion. He ridicules "the supposed principle of neutrality between religion and irreligion" and defends "governmental affirmation of the society's belief in God." He asserts that "With respect to public acknowledgment of religious belief," the Constitution permits "disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists." While Scalia ostensibly discusses what he regards as the Constitution's original intent, the tone of his stinging dissent leaves little doubt that he is also talking about his idea of a proper civic order—one in which those who do not adhere to traditional religions are, in an important sense, relegated to second-class status.

Scalia appeals both to numbers and to history. He points out that 97.7 percent of religious believers in the United States belong to monotheistic religions that recognize the Ten Commandments—Christianity, Judaism, and Islam. (Here, he manages to leave out the fact that in according to 2001 Census data, at least 14 percent of Americans have no religion.) He also notes that official recognition of a deity by the state, particularly by state governments, was a common and accepted practice when the Constitution was written and that these practices were not rejected by any of the Founders.

Yet, as UCLA law professor Eugene Volokh notes on his legal commentary blog, The Volokh Conspiracy, Scalia's majoritarian and historical argument could be just as logically used to justify government endorsement not only of monotheism, but of Christianity (which Scalia does regard as impermissible). After all, the overwhelming majority of monotheists in America are Christian. For many years after the Constitution was adopted, many states engaged in practices that explicitly established Christianity as an official religion, including the exclusion of non-Christians from public office. Over time, our understanding of the First Amendment has evolved to be more inclusive toward religious minorities—Jews at first, and eventually also members of religions outside the monotheistic tradition as well as the nonreligious.

Under the court's current rulings, older Ten Commandments displays dating back to less contentious but also less pluralist times and representing primarily cultural heritage will be allowed to stay, while newer monuments such as the one established by Judge Roy Moore in Alabama, for the specific purpose of sending a message of "Judeo-Christian" supremacy, will not pass muster. It's not a perfect ruling; but it is, perhaps, the fairest and least divisive way to resolve the issue.