Big Ten

by Jeffrey Rosen | March 14, 2005

This week, the Supreme Court heard arguments about the constitutionality of displaying the Ten Commandments in and around courthouses. As with all hotly contested questions of American life, the tie-breaking vote may be cast by Justice Sandra Day O'Connor, and her reaction to two very different Ten Commandment displays in Texas and Kentucky is anyone's guess. But the Ten Commandments case is an important window into the Supreme Court battles to come, because it reveals the stark difference between conservatives like O'Connor, who genuinely believe the state should be neutral between religion and secularism, and conservatives like Justices Antonin Scalia, Clarence Thomas, and William Rehnquist, who yearn to resurrect open state support for religion, including school prayer. During oral arguments in the Ten Commandments case, O'Connor declined to tip her hand. (Scalia, by contrast, said that courts should be able to declare explicitly that "the government's authority comes from God.") But, in past cases, O'Connor has made clear that she would ask the following question: Would a reasonable person perceive the Ten Commandment displays as an endorsement of religion? In the Pledge of Allegiance case last year (which the Court ducked at the last minute), O'Connor fleshed out her views: Public acknowledgments of religion are less likely to be struck down when they have gone unchallenged for a long time, when they don't involve worship or prayer, when they don't refer to a particular religion, and when they contain minimal religious content. If she applies these factors, O'Connor might well strike down one of the Ten Commandments displays and uphold the other. But it's hard to predict which. The less troubling display is arguably in Texas, a huge, six-foot granite tablet located between the Texas state capitol and Texas Supreme Court. It is part of a series of 18 supersized historical monuments, ranging from the Heroes of the Alamo (donated in 1891) to the Texas Peace Officer's Memorial (donated in 1999). The Ten Commandments were donated in 1961 by the Fraternal Order of Eagles, an association of theater owners who were working with Cecil B. DeMille to promote his movie retelling the story of Moses. The Eagles modeled their monument on publicity shots from DeMille's picture, hired Charlton Heston to dedicate it, and consulted an interfaith committee of Jews, Protestants, and Catholics to make it as ecumenically tacky as possible. The Texas version has the text of the Ten Commandments in huge letters, adorned by an American flag, a Star of David, and the Greek letters for Christ. In the past, the Supreme Court has subscribed to what lawyers call a "three plastic animals" rule for religious displays: If a crche in a town square, for example, is surrounded by a wishing well and a laughing clown, it's constitutional. The logic is that reasonable observers perceive unadorned religious displays to be endorsements of religion, while the addition of kitschy accoutrements turns the display into a celebration of Americana. Judged by this kitsch test, the Hollywood version of the Ten Commandments, surrounded by equally garish secular monuments, arguably passes muster. By contrast, the Ten Commandment display in Kentucky, also being challenged before the Supreme Court, has a more troubling history. In 1999, after lobbying by evangelical Christians, two Kentucky counties passed resolutions encouraging the posting of the Ten Commandments in local courthouses. Citing former Alabama Chief Justice Roy Moore's unsuccessful attempts to display the Commandments in his courthouse approvingly, the counties said their purpose was to demonstrate the "inseparable connection" between Kentucky laws and "Christian principles." After this display was successfully challenged as blatantly unconstitutional, the counties gussied up the display with quotations from historical documents referring to God, such as the Declaration of Independence and Ronald Reagan's declaration of the year of the Bible in 1983. Sued once again, the counties came up with a third display, surrounding the Ten Commandments with a few patriotic speeches and songs, packaging the collection as a display of documents that have "profoundly influenced the formation of Western thought." In the Pledge of Allegiance case, O'Connor said that a reasonable observer can be expected to understand the context in which a religious display appears. Anyone familiar with the history of the Kentucky Ten Commandments display would understand it as a transparent effort by the state to endorse a controversial proposition about the centrality of religion in U.S. law. It's possible, of course, that O'Connor could come out the other way--ruling that the cheesy Texas monument is an unadorned religious text while the Kentucky display at least attempts to put the Commandments in a secular context. (As Stephen Breyer noted, the contentious history of the litigation will eventually be forgotten.) But, either way, O'Connor's legal focus is a sensible one. Asking whether a particular display endorses religion is another way of asking whether the state has remained neutral between religion and secularism, neither promoting religion nor discouraging it. In the Ten Commandments case, social-conservative organizations are urging the Court to abandon O'Connor's focus on neutrality and instead ask whether a particular display coerces religious belief. They cite the opinions of Rehnquist, Scalia, and Thomas, who have argued that government should be free to promote religion in general, as long as it doesn't discriminate among religions. And they agree with those three that a focus on coercion would allow the government to resurrect voluntary school prayer and to post the Ten Commandments in courtrooms or schools. But Rehnquist, Scalia, and Thomas's view is historically questionable. It has been explicitly challenged by Judge Michael McConnell of the 10th Circuit Court of Appeals, the leading conservative scholar of religious liberty, whose potential Supreme Court candidacy is being enthusiastically championed by social conservatives. In 1992, McConnell argued that the best historical evidence refuted Rehnquist's claim that the framers of the Constitution believed that the federal government could aid religion as long as it did so ecumenically. Moreover, it was McConnell who, in 1986, proposed an emphasis on coercion as the touchstone of religious freedom--a proposal that Rehnquist, Scalia, and Thomas later embraced. But, as Douglas Laycock of the University of Texas puts it, "McConnell's vision of coercion is vastly more nuanced than Rehnquist and Scalia's." McConnell, for example, disagrees with Rehnquist, Scalia, and Thomas that the First Amendment allows school prayer. "It is vital to understand the concept of coercion broadly and realistically," he wrote in 1992. "I would have thought that gathering a captive audience is a classic example of coercion; participation is hardly voluntary if the cost of avoiding the prayer is to miss one's graduation." How McConnell would rule on the display of the Ten Commandments by Kentucky and Texas is hard to guess. But McConnell's willingness to struggle with hard questions involving public acknowledgment of religion shows that his commitment to neutrality is genuine. It's not a strategic compromise on the path toward a larger goal of an openly religious state. The moderate position sketched by O'Connor and McConnell is especially important in a post-September 11 world. As Europe confronts the growing threat of Islamic extremism, countries like France are attempting to denude the public square of all religious displays--for example, forbidding young Muslim girls from wearing headscarves as a threat to the secular state. But the French effort to crack down on even private religious speech is an expression of the same overzealous secularism that led the French revolutionaries of earlier times to smash the faces of carved saints in the cathedrals. There is a similar zealotry in the air in the United States, as radical separationists are attempting to cleanse the public square of even ceremonial acknowledgments of our religious history while radical supremacists yearn for open state support of religion. The Supreme Court should reject both extremist positions. By ruling that the Ten Commandments can be displayed as long as the state isn't attempting to endorse a particular view about the centrality of religion in American life, the Court may not satisfy secular liberals or social conservatives. But it could provide a model of a healthy relationship between church and state.

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