Table of Contents
Articles in this issue
From the Editor:
Was New Orleans Asking For It?
The God Squadron
Culture War, Italian Style
Establishment In the Balance
Homosexuality in the Schools
Presbyterians Divest the Jews
Cruisin' For a
Establishment in the Balance
by David W. Machacek
3, the day after the Supreme Court heard arguments involving displays of the
Ten Commandments, Houston Chronicle reporters Michael Hedges and Don
Jordan wrote that the justices “seemed eager” to cut through “a
contradictory legal thicket” created by the dozens of lower court rulings.
If so, they must have been frustrated by what they managed to achieve.
to the June 27 decisions, some commentators were vexed by the idea that
anyone could object to what Washington rabbi Joshua O. Haberman described in
a Baltimore Sun op-ed as “the world’s best-known ethical and
makes one cringe to see where this is leading,” wrote the Chicago
Sun-Times’ Mary Laney in a March 7 column that spent a good deal of
space discussing a massive pedophile trial such as was taking place in that
most secular of nations, France.
contrast, Sol Wachtler, former chief judge of the New York State Court of
Appeals, and David Gould, former assistant U.S. attorney, cringed to think
of where American society would be led by the argument that scriptural
injunctions are foundational to American law. “Let us not forget that one of
the alleged ‘historical’ underpinnings for our legal system, in Exodus,
called for the death penalty for working on the Sabbath,” wrote the two in
an April 12 Newsday op-ed.
like syndicated columnist Ellen Goodman, found it ironic that religious
conservatives had to defend the displays by arguing that the Commandments
were not really religious. In a March 3 column, Goodman noted that a lawyer
for the defendants “actually told the justices that references to ‘God’ in
the Commandments were minimal,” prompting Ruth Bader Ginsburg “to ask if
he’d actually read the first four.” In response to a similar claim from the
Texas attorney general, Justice Scalia retorted, “You’re kidding yourself.”
the high rhetoric, journalists generally recognized that it wasn’t the Ten
Commandments that were on trial but the so-called Lemon test, a principle of
adjudication that had guided the court’s interpretation of the Establishment
Clause (“Congress shall make no law respecting an establishment of
religion…”) into the current legal morass.
Supreme Court enunciated the test in a 1971 case, Lemon v.
Kurtzman, on the constitutionality of a Rhode Island program to
reimburse religious schools for the costs of teaching secular subjects. In
rejecting the program on the grounds that it required too much oversight to
ensure that the money was being used solely to teach secular subjects, the
court declared that, in order to comply with the Establishment Clause, a law
had to satisfy three conditions: 1) it must have a legitimate secular
purpose; 2) the promotion or inhibition of religion cannot be the law’s
primary effect; and 3) the policy must not lead to an undue “entanglement”
of the government with religion.
operative standard over the next several decades, the Lemon test seemed like
a recipe for endless legal hairsplitting. As Goodman pointed out in her
March 3 column, “[S]tate legislatures can start the day with prayers but
schools can’t. It’s OK to have a crèche in front of City Hall as long as it
has enough reindeers to look like a store window.”
Especially to conservatives, Lemon
came to represent what
blogger Benjamin Bull called an “unmitigated disaster” that has “yielded a
maze of conflicting court decisions” and established an “unbridled judicial
power” to strike or uphold democratically enacted policies based primarily
on the subjective opinions of the individual judges.
years, Justice Sandra Day O’Connor advanced a simpler test under which the
government is not to be allowed to make an “endorsement” of religion.
Employing that standard, O’Connor sometimes came out on the liberal side and
sometimes on the side of conservatives, giving her a reputation as a swing
vote in church-state cases. However, that test has never been fully embraced
by either her more liberal or more conservative colleagues.
widespread agreement on the part of moderates as well as conservatives that,
as Bull put it, “it’s time to put the squeeze on Lemon,” the result
was a classic Lemon splitting of hairs. On June 27—its final
session, as it turned out—the Rehnquist court issued two seemingly
conflicting decisions, one allowing a granite monument of the Ten
Commandments on the state capitol grounds in Austin, Texas, and the other
ordering the removal of framed copies of the Commandments from several
separate opinions and over 130 pages of legalese left journalists almost
universally befuddled, and they did not hesitate to admit it. As the
headline on Adelle M. Banks June 28 story for the Religion News Service put
it, the rulings left a “Wake of Confusion.” Across the country, editorial
pages characterized them as—just to pick a few Western examples—“murky” (Ventura
County Star), sending a “mixed message” (Wyoming Tribune-Eagle),
and “mind-bending” (Rocky Mountain News).
of editorial pages saw things differently, including the San Antonio
Express-News, which praised the Court’s “nuanced reasoning,” and the
Salt Lake Tribune, which found the decisions “clear and encouraging.”
But so much did judicial confusion become the dominant story line that many
suggested the need for an Eleventh Commandment: “Thou shalt be clear and
decisive” (Palm Beach Post); “The U.S. Supreme Court shalt not
contradict itself” (Boston Herald); “Thou shalt revisit the issue”
(Cleveland Plain Dealer).
“With…justices being so confused,” asked the Chattanooga Times Free Press,
“how can the public be otherwise?” Yet some of the blame needs to be
extended to the coverage itself.
common reportorial mistake was attributing the deciding vote in the two
cases to Justice Sandra Day O’Connor. So powerful had O’Connor’s reputation
as the court’s swing justice become that even reports, like CNN’s on June
27, which correctly stated that it was Justice Stephen Breyer who “voted
against the displays in Kentucky but in favor of the one in Texas,” went on
to say in the next line that O’Connor “cast the swing vote.”
search for a simple rule to explain the split decision, many—no doubt, with
earlier crèche decisions in mind—seized on the context of the displays as
the deciding issue. Thus, for instance, David Savage reported in the Los
Angeles Times that “the pair of rulings suggests that the Ten
Commandments may be displayed inconspicuously among other monuments, but
cannot be made the focus of attention in a courthouse or government
building.” Stories repeatedly quoted Erwin Chemerinsky, the lead attorney in
the Texas case, to the effect that “[c]ontext is everything….If there is an
overall display of sources of law, the Ten Commandments can be there.”
New York Times crack court watcher Linda Greenhouse implied that time
and context sufficiently neutralized the religious nature of such displays
as to make them inoffensive to the Establishment Clause. “[I]t appeared to
be that religious symbols that have been on display for many years, with
little controversy, are likely to be upheld, while newer displays intended
to advance a modern religious agenda will be met with suspicion and
disfavor,” she wrote.
fact, the Ten Commandments decisions did not rely on the so-called “reindeer
rule”—the principle applied in several holiday display decisions that
religious symbols on public property are OK so long as they are “seasonal”
enough (or, as columnist George Will among others claimed, kitschy enough)
that no one is likely to take them seriously as religion.
import of the decisions was that it was an unvarnished application of the
Lemon test that determined the split outcome.
Kentucky case, McCreary County v. ACLU, the lawyers defending
the displays argued that the “secular purpose” prong should be abandoned.
The subjective intent of a legislature, they argued, is unknowable, and “its
search merely an excuse for courts to act selectively and unpredictably.”
University law professor Marci Hamilton remarked in her June 29 “Findlaw”
column, “[T]his was a terrible case in which to try to make this argument.”
The government’s purpose was explicit and part of the public record. Even
after a lower court had ordered the displays removed, excerpts of religious
language from other historical documents were added to its display.
Moreover, the Kentucky legislature passed a resolution declaring the Ten
Commandments to be the basis of the Declaration of Independence and
American law and that the purpose of the display was intended to honor
“Jesus Christ, the Prince of Ethics.”
question put before the court in McCreary was whether a state
legislature could constitutionally enact a policy whose explicit purpose was
to promote religious belief. Five justices—Souter, Stevens, O’Connor,
Ginsberg, and Breyer—said “no.” They thus preserved the first prong of the
Lemon test against a challenge by four justices—Rehnquist, Scalia, Thomas,
and Kennedy—who took the position that the state may promote
religious beliefs so long as it doesn’t employ coercive methods.
contrast, the decision in the Texas case, Van Ordan v. Perry,
involved some careful balancing. There, the question was whether a monument
erected for ostensibly secular reasons—to recognize the efforts of a civic
organization to combat juvenile delinquency (or, as many of the news stories
noted, to promote a movie by Cecil B. DeMille)—fell under the prohibitions
of the Establishment Clause if it could be perceived as an effort by
the state to promote religion. In other words, the arguments in the case
concerned the second prong of the Lemon test, that the primary effect not be
to promote or inhibit religion. And, even though the outcome was different,
the Lemon test again prevailed.
the greatest confusion surrounding the two cases concerned Justice Breyer’s
vote to allow the Texas monument. To many commentators, he seemed to be
playing Solomon—only in this version of the story neither of the claimants
had been willing to stand down, raising doubts that justice had been done.
We forget, opined the Deseret Morning News June 28, “that if Solomon
had actually split the baby he’d be considered one of the most foolish kings
wasn’t being Solomonic, nor had “pure legal consistency failed” for him, as
the Roanoke Times alleged June 29. In his concurring opinion, the
justice found that the monument in Texas passed the Lemon test.
“The Texas display,” he wrote, serves
“a mixed but primarily non--religious purpose, not primarily “advanc[ing]”
or “inhibit[ing] religion,” and not creating an “excessive government
entanglement with religion.” Therefore, “the Texas display falls on the
permissible side of the constitutional line.” For Breyer, the facts in the
case did not warrant the conclusion that the Texas monument had the primary
effect of promoting religion.
Lemon lives to fight another day—in a Supreme Court with a new chief
justice, a new associate justice, and plenty of Establishment Clause cases
waiting in the wings.Hardly had the McCreary and Van Orden
decisions been issued than, as Alan Cooperman reported in the Wahington
Post June 28, Christian groups “announced a nationwide campaign to
install similar displays in 100 cities and towns within a year.” Then, in
August, a federal judge in California issued another ruling forbidding
public schools to require students to recite the Pledge of Allegiance with
the phrase “under God.”
headline on Mark Cheshire’s July 1 commentary in the Baltimore Daily
Record put it, “Let’s get ready to rumble.”