A recent phenomenon in the United States is that no one knows any longer to what extent the country, our states, or our municipalities can participate in the display of such traditional religious symbols as crèches, crosses, menorahs, or even the Ten Commandments.  Until the last half of the 20th century, no one seemed too concerned about the problem.  Then—while retooling the Constitution with regard to criminal procedure, reapportionment, and racial segregation—the Supreme Court, under Chief Justice Earl Warren, declared, for the first time in U.S. history, that it was impermissible for states or municipalities to mandate Bible reading or prayer in public-school classrooms.  The Supreme Court’s rationale was that the First Amendment, which prohibited Congress from making any law “respecting an establishment of religion,” ought to be interpreted as forbidding any state or local government from imposing any religion on its citizens.  The amendment, declared the Court, quoting an 1802 letter written by Thomas Jefferson to the Danbury Baptists in Connecticut, erects a “wall of separation” between Church and State.  

There has been a spate of recent writing on the history of the First Amendment and on Church-State relations in the early republic.  Even the academy is beginning to understand that Jefferson’s view was not commonly shared, and, more importantly, that Jefferson himself had no doubt that the First Amendment only prohibited acts by the federal legislature, not those of the states.  In the early 20th century, however, the Supreme Court began to declare that the 14th Amendment, passed in the wake of the Civil War in order to guarantee blacks the same property and contract rights and legal protection as whites, somehow fundamentally altered what the states could and could not do.  The Court declared that the 14th Amendment’s prohibition on any state depriving any person of the “equal protection of the laws,” or taking any person’s property without “due process,” or depriving anyone of the “privileges and immunities” of U.S. citizens meant that most of the restrictions that had formerly been applied to the federal government by the Bill of Rights should now be applied to the states.  This was unparalleled judicial legerdemain, since those amendments had been expressly designed to protect the states and their citizens in the exercise of self-government; to turn those amendments into tools that federal officials could use to dictate how the states run virtually every aspect of their governments was fundamentally to fly in the face of their original intention.

While there was, at first, some resistance to the Warren Court’s bolder efforts in this regard, it is remarkable how this “Government by Judiciary,” as one critic called it, came to be so accepted.  Indeed, during the last 40 years, to point out the obvious ways in which the Court (particularly in cases involving religion) had misread the Constitution was to court ridicule among the cognoscenti.  Most law professors and most judges seemed willing to have the Court essentially rewrite the Constitution according to the justices’ opinions of what ought to be sensible public policy.  Particularly, in the wake of the holocaust—in which many millions perished because of their religious identities—the Court seemed reluctant to impose any orthodoxy on U.S. citizens.  By 1992, the Supreme Court had declared it impermissible for public high schools to sponsor prayers at graduations (even though this had been done without adverse comment for generations), and, shortly thereafter, the Court saw fit to ban even student-sponsored prayer at public high-school football games.

So sensitive had the chattering classes become on this point that, in the early 90’s, when a Mississippi governor reminded the country that this was a “Christian nation,” he was roundly excoriated.  At the time of the Constitutional Convention, however, the governor’s comments would not have been thought remarkable, and, even in the Federalist (the best contemporary guide to the Constitution), John Jay (who became the first Chief Justice of the U.S. Supreme Court) observes that the country was blessed to enjoy a common religion.  In a famous 1892 case, the Supreme Court even declared that America was a “Christian nation.”  In 1833, the most prominent constitutional scholar of the day, Justice Joseph Story, wrote in his influential Commentaries on the Constitution that, while the First Amendment barred the federal government from establishing any one sect as the national religion, Washington was certainly permitted to give aid and comfort to Christianity; moreover, he argued, support for religion generally was the duty of any sensible government.

This view, informed by history and common sense, did not prevail.  Somehow, the historic reading of the First Amendment was transformed into a virtual prohibition on any federal, state, or local government aiding or promoting any religion.  Still, Americans have not quite been willing to live under such a “Godless Constitution.”  Thus, every holiday season, there are battles over what can be displayed in our public squares.  In 2002, the key cases involved a menorah in Cincinnati and the Ten Commandments in Alabama.  Curiously, the federal courts permitted the display of the first and ruled against displaying the second.  How can we reconcile this discrepancy?

The Cincinnati case was brought by two Orthodox Jewish groups who sought to display a menorah on Fountain Square Plaza.  They had been prevented from doing so by a Cincinnati ordinance passed to keep the Ku Klux Klan from erecting a Latin Cross at Christmastime on the square.  The ordinance gave exclusive use of the square to the city during the last two weeks of November, the month of December, and the first week of January.  A traditional locus for political, civic, and cultural affairs, Fountain Square had long been the prime place for Cincinnatians to voice their views and display their icons, particularly during the holiday season.  The city, seeking to maintain the holiday atmosphere, intended to mount a display including “two large Christmas trees, a skating rink, a concession kiosk, several small evergreens, and many decorative lights.”

U.S. District Judge Susan J. Dlott determined that the Cincinnati ordinance was unconstitutional because it interfered with the Jewish plaintiffs’ First Amendment right to engage in symbolic speech by displaying their menorah.  The court conceded that the city had the right, in the public interest, to regulate speech in public forums but (following clear Supreme Court doctrine) not to regulate the content of speech, unless there is a “compelling” reason to do so and the regulation is “narrowly tailored” to achieve that “compelling” purpose.  

The court correctly noted that the ordinance was designed “to eliminate speech which might be controversial or offensive to those visiting downtown Cincinnati.”  In a curious footnote, the court even suggested that

one could argue that the distinctions here are based on viewpoint.  The City’s display promotes a secular, and arguably Christian, view of the winter holidays and emphasizes the joy and festivities attendant to that season.  The [ordinance], on the other hand, excludes any speech, such as the Chabad’s and the Homeless Hotline’s which expresses another viewpoint, be it a Jewish one or one emphasizing the plight the homeless experience, even during the joyous holiday season.

In addition, the court called the city’s planned display a “smorgasbord of secular, pagan, and arguably Christian symbols.”  More to the point, rejecting Cincinnati’s implicit claim that there was a “compelling interest” in guarding against “controversial or offensive” speech during the holiday season and observing that a seven-week ban on all privately sponsored displays could hardly be characterized as “narrowly tailored,” Judge Dlott enjoined the city from enforcing the ordinance and, in effect, ordered the city to permit the menorah.  A federal appeals court reversed the trial court and ruled in favor of the city, but the U.S. Supreme Court, through the actions of Justice Stevens, reversed the court of appeals and reinstated the trial court’s order.  The ordinance was overturned, and the menorah was permitted.

On the other hand, when the chief justice of the Alabama Supreme Court, Roy Moore, installed in the rotunda of his court in Mobile a relatively small granite monument—paid for by private contributions—bearing the Ten Commandments and quotations from the Framers and from Blackstone on the moral and religious foundations of the law, he was ordered by a federal district judge to remove it.  Justice Moore had previously become famous in Alabama as a lower-court judge who refused to remove a much smaller plaque of the Ten Commandments from his courtroom.  Legal proceedings were begun against him then, but he managed to keep his plaque, since a lower federal court ruled that the plaintiffs suing him had no standing because they could not prove that they would ever be in his court and, thus, be affected by his plaque.  Capitalizing on the fame this brought him and believing it to be his moral and religious duty, Judge Moore campaigned for chief justice as the “Ten Commandments judge” on a platform of reinstating religion and morality as the basis of law in Alabama.

As chief justice, Moore had sole authority to determine which items decorated the court’s rotunda, and he also exercised that authority to place quotations by Martin Luther King, Jr., and Frederick Douglass on the walls of the rotunda.

Several lawyers who had been longstanding critics of the judge (aided by the ACLU, Americans United for the Separation of Church and State, and the Southern Poverty Law Center) argued that the placing of the Ten Commandments in the rotunda amounted to an unconstitutional establishment of religion.  Several other cases had previously found such displays on government property to be impermissible.  In deciding the case, federal district court judge Myron H. Thompson faced a difficult task, however, because other judges had held that displaying the Ten Commandments did not violate the Constitution.  Indeed, there are two engravings of the Ten Commandments in the U.S. Supreme Court, as there are in many state and federal courts across the land.

Nevertheless, Judge Thompson ruled that Justice Moore’s Ten Commandments had to go.  As he had before, Moore argued that the three plaintiffs lacked standing—they could not show any injury resulting from his display.  The law on standing holds that, to quote Judge Thompson’s own words, “the plaintiffs must suffer personal injury ‘as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees.’”  That statement would seem to deny standing to the plaintiffs (three lawyers who regularly practice in the Alabama Supreme Court building), but Judge Thompson ruled that they had standing because each of the three found the monument “offensive,” each “said the monument makes him or her feel like an ‘outsider,’” and, further, “each visits the rotunda less frequently and enjoys the rotunda less because of the monument’s presence.” 

Justice Moore’s lawyers argued that the plaintiffs were not really offended by the monument but simply offended by Moore.  And, since all of them are strong and successful civil-rights lawyers who are well established in their professions and practices, they could hardly be regarded as “outsiders.”  Still, Judge Thompson claimed to believe the plaintiffs.  Because some courts had ruled that “An effect on an individual’s use and enjoyment of public land is a sufficient noneconomic injury to confer standing to challenge governmental actions,” he held that the purported injury to the plaintiffs’ feelings and the diminishment of their “use and enjoyment” of the rotunda gave them standing.

That inflicting such an injury is a violation of the First Amendment would have surprised the Framers, not only because they, like Justice Moore, generally believed that it was appropriate to recognize the religious and moral foundations of the law but because what they sought to avoid was the establishment of a state sect that each citizen would be required by law to conform to or to support with his taxes.  Nevertheless, since the cases involving prayer at public-school activities had been predicated on the kind of “psychological coercion” to which Justice Moore’s adversaries claimed they were being subjected, Judge Thompson’s ruling was not surprising.

Merely to have standing, however, is not to win your case, and the plaintiffs still had to show that any psychological harm caused by Justice Moore’s monument violated the Constitution.  For this, Judge Thompson turned to the frequently criticized but still current three-part test administered by many federal courts to determine violations of the Establishment Clause.  The Establishment Clause says merely that it is impermissible for Congress to make “any law . . . respecting an establishment of religion.”  Nevertheless, for three decades now, the courts have used this simple and specific language to bar many religious displays.  For a display to be permissible, it “must have a secular legislative purpose, . . . its principal or primary effect must be one that neither advances nor inhibits religion, . . . [and it] must not foster ‘an excessive government entanglement with religion.’”

Taking into account Justice Moore’s previous political campaigning, Judge Thompson ruled that he had a religious purpose, not a secular one, in erecting the monument; that the monument was designed to promote Christianity; and that the fact that the monument had been paid for by funds donated at least in part by an evangelical church—with which Judge Moore continued to be associated—was “an excessive governmental entanglement with religion.”  To state this test is to reveal its plasticity.  If a judge were more favorably inclined toward Justice Moore, he could certainly find, first, that Justice Moore’s purpose was secular, as he believed in good faith that no secular legal order could survive without a moral and religious foundation (a belief he shares with the Framers); second, that he used the text of the King James Bible in displaying the Ten Commandments not specifically to promote Christianity but because it was the one historically most familiar to Americans and that, by erecting his monument, he neither advanced nor promoted any particular religion; and, third, that, once the monument was placed inside the rotunda, it required no further entanglement with any religious bodies.  In other words, on both the standing and substantive issues, a ruling for Justice Moore would not have been out of line.

Justice Moore appealed Judge Thompson’s ruling as well as his expected decision to require Justice Moore to pay the $704,000 in legal fees that the plaintiffs claim to have incurred.  (Their case was couched as a civil-rights lawsuit, and federal law requires the loser in such cases to pay the winner’s attorneys’ fees.)  Eventually, a federal court of appeals or the U.S. Supreme Court will have to settle Justice Moore’s case, and, even if he loses (as he did before), he may refuse to cooperate, thus requiring President Bush to decide whether he wants to order federal marshals to remove the Ten Commandments from public display.

So how do we reconcile the two cases?  An intriguing suggestion comes from a holiday brouhaha in New York, where the top lawyer for the New York City public schools has ruled that no Nativity scenes may be displayed, yet “The display of secular holiday symbol decorations is permitted.  Such symbols include, but are not limited to, Christmas trees, Menorah’s [sic], and the Star and Crescent.”  Andrea Skoros, a Catholic mother from Queens, supported by the Catholic League for Religious and Civil Rights, has filed suit against the school district, arguing that the permitted symbols are not secular but religious and that the district is violating the First Amendment’s Establishment Clause by permitting them while prohibiting crèches.  This attitude may explain why a menorah gets displayed in Cincinnati, while the Ten Commandments are barred in Alabama.  (This is the conclusion reached by the Catholic League’s William Donohue, who says that Christians should blame themselves for allowing their constitutional rights to display their symbols to be trampled.  “Christians,” he says, “are such wimps.”)

The Cincinnati menorah case might also be distinguished from Justice Moore’s on the grounds that the former involves an assertion by citizens of their right to “free exercise” of religion, while the latter is about the government’s alleged endorsement of religion.  This is mostly lawyers’ pettifoggery, however; the real problem is that none of the federal courts’ interference with state and local governments in matters of religion is justified by the First Amendment.

Most Americans claim to be not only religious but specifically Christian, and most Christians continue to believe that they live in a Christian country.  This cognitive dissonance will only be resolved either when federal judges cease practicing judicial iconoclasm or when Christians conclude that their government opposes their religion.