Fall 2005, Vol. 8, No. 2

Table of Contents
Fall 2005

Quick Links:
Articles in this issue

From the Editor:
Was New Orleans Asking For It?

The God Squadron

Culture War, Italian Style

Establishment In the Balance

Covering Homosexuality in the Schools

Presbyterians Divest the Jews

Cruisin' For a Scientological Bruisin'



Establishment in the Balance
by David W. Machacek


On March 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.

Leading up 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 religious statement.”

“Almost 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.

By 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.

Others, 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.”

For all 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.

The 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.

As the 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.

In recent 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.

Despite 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 Kentucky courthouses.

The 10 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).

A handful 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.

The most 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.” 

In their 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.”

Even 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.

But in 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.

The real import of the decisions was that it was an unvarnished application of the Lemon test that determined the split outcome.

In the 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.”

As Yeshiva 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.”

The 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.

By 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.

Perhaps 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 in history.”

But Breyer 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.

And so, 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.”

As the headline on Mark Cheshire’s July 1 commentary in the Baltimore Daily Record put it, “Let’s get ready to rumble.” 


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