What History Reveals about the Establishment Clause

Yesterday, the Supreme Court came down with two opinions concerning the display of the Ten Commandments in public places. The first case in Texas ruled that the display of the Ten Commandments at the State House was constitutional. The second case in Kentucky ruled that the display of the Ten Commandments in a courthouse was unconstitutional. While I have not yet read the two opinions, it appears from the discussion I have heard on the radio and seen on the news that the court distinguished the two cases based upon the intent of the bodies that placed the Ten Commandments in the two public locales. In Texas, it was argued that the display of the Ten Commandments was part of a larger secular display which gave it a secular purpose. In Kentucky, even though the display was also part of a larger secular display like the display in Texas, the original display in Kentucky had been only the Ten Commandments which meant that the purpose of the display was to promote the Ten Commandments and, consequently, religion.

This seems to me to be a hopelessly convoluted approach to the issue. If you had approached both exhibits without any knowledge of how they came to be displayed you would have seen the same thing: a display which included the ten commandments as one exhibit among many. Thus, you have two displays which are identical to the viewer, but one of which is unconstitutional because the "intent" was wrong.

Now the Supreme Court has been stuck on this idea of "intent" for a long time, dating back at least as far as the Lemon v. Kurtzman case where the court ruled that a state crosses the line (at least in public school settings) set by the Establishment Clause when the legistlative body (be it Congress, the State or local legislature) passes a law which either does not have "a secular legislative purpose" or the "principal or primary effect" of which either advances or inibits religion. Needless to say, the "legislative purpose" leg of the Lemon test has been routinely questioned. Consider the following from Professor Lawrence Tribe, quoted in Constitutional Law: Cases--Comments--Questions (8th Ed):

The secular purpose requirement, partly because of its sketchy parameters, could raise two particularly important conceptual problems in application. First, it might be used to strike down laws whose effects are utterly secular. A legistlature might, for example, vote to increase welfare benefits because individual legislators feel religiously compelled to do so. So too, when a legislature passes a neutral moment-of-silence statute, many legislators may hope that students will use the time for prayer. However improper these purposes may be, it is hard to see a meaningful establishment clause problem so long as the statute's effects are completely secular.

What Professor Tribe notes is exactly the state of affairs in the two cases in Texas and Kentucky. The people in Kentucky responsible for the display recongnizing the possibility that the display would be unconstitutional if it were merely the display of the Ten Commandments, added elements to the display that made it look, to all outward appearances, very similar to the display that was found Constitutional in Texas. Both included the Ten Commandments as part of a larger display and both, therefore, should have been Constitutional under the Supreme Court's reasoning in the Texas case. However, when the Supreme Court chose to look at motives, then suddenly the Kentucky display becomes unconstitutional.

In effect, the Supreme Court's decision makes it clear that the debate in any case under the Establishment Clause cannot be determined by looking at the display objectively. Rather, any time anything remotely religious is included in a display, the question is going to become one of "what is the intent of the government in including that religious symbol in the display?" If it is found to be religious instead of secular (the differentiation between which is rather ad hoc, e.g., is a law giving aid to poor people religious or secular?), the display must be removed (or at least the religious element must be removed). Do you know what this means? More lawsuits over displays to determine the "intent" of the legislature and uncertainty in the area because there is no way to know the intent until the court rules on the intent. And this, in turn, means a more conscious effort to exclude religious symbols in displays because of concerns about lawsuits.

The court's decisions, however, are convoluted because the court has misinterpreted the purpose (there's that word again) of the Establishment Clause since Everson v. Board of Education in 1947. The underlying problem with the Supreme Court's decisions is that the precedents that they are relying upon misunderstand the proper role of the Establishment Clause in the minds of the framers.

Historian Clayton Cramer, at his excellent blog, took issue in an essay entitled "Where the Supreme Court Went Offtrack" (June 27, 2005) with the Supreme Court's efforts in the recent decisions regarding the placement of the Ten Commandments in public forums. In doing so, he notes: "It is very clear that several of the states would not have ratified the First Amendment if it had been understood to require the states to be neutral "between religion and religion, and between religion and nonreligion. A number of states still had established churches, with state constitutions that explicitly provided for discrimination." Professor Cramer than provides evidence for this assertion by quoting directly from the Constitutions of the various states. Professor Cramer makes an excellent case for his position, and I encourage everyone to read what he writes.

I realize that this is somewhat wishful thinking, but wouldn't it be nice if the court would go back to the original understanding of the Establisment Clause and not promote excessive litigation by forcing us to seek for a "secular legislative purpose" for the display of a tree at Christmastime?


biblemike said…
The consistency between these decisions is the issue of purpose because that leaves the court, or at least those justices making up the majority, the authority to determine what people's intents are and thus create the religion free society they seek. You are right about people fearing lawsuits and thus avoiding religious symbolism of any kind. That is the whole point and purpose of the decision making involved here. It should not escape notice that the justices escaped the desecration of their own chambers by having the older display allowable, but the newer display is egregiously religious in intent. "Older" displays are thus grandfathered in by the Texas decision and all future displays are disallowed by the Kansas decision. Future displays are automatically assumed to be religious and thus not allowable and religion is removed from the history and the map of the United States - no matter what the intention of the constitutional authors and signers.
Layman said…

I think even liberal legal scholars would agree that as adopted the First Amendment's bar on establishment was not intended to apply to the states. In fact, about 25% of the ratifying states had established state religions at the time. But, what liberal legal scholars would say is that with the adoption of the 14th Amendment, most of the bill of rights were incorporated to apply to the states. I think there is a lot to be said for the incorporation doctrine generally, and the Supremes have long since assumed it as a fact. When it comes to the incorporation of the Establishment clause to apply to the states, though, I think the issue is a more difficult one; especially since the original Establishment clause could very well have been seen as a protection of state establishment of religion. Still, I'm not sure what the state practices were after the War Between the States, so I'm not sure what we could surmise about the original understanding.

In any event, even assuming the incorporation of the establishment clause, I think the Supremes have long been awry on what constitute the establishment of religion.

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