The Supreme Court’s recent decisions in McCreary County v. ACLU of Kentucky and Van Orden v. Perry have highlighted, yet again, the deep divisions within the Court concerning the proper interpretation of the Establishment Clause of the First Amendment. In particular, there is a stark contrast between the Establishment Clause jurisprudence found in the majority opinion of Justice David Souter in McCreary County and the dissent of Justice John Paul Stevens in Van Orden, and the Establishment Clause jurisprudence found in the majority opinion of Chief Justice William Rehnquist in Van Orden and the dissent of Justice Antonin Scalia in McCreary County. Souter, Stevens, and their allies hold firmly to the view that the Establishment Clause mandates government neutrality between religion and nonreligion. Rehnquist and Scalia contend that the government, at most, is only prohibited from preferring one religion, or some religions, over others. Disturbingly, based on his latest opinion, Scalia now appears prepared to narrow the scope of the Establishment Clause even further.
By now, everyone is presumably
reasonably familiar with the outcome of the Ten Commandments cases.
In McCreary County, the Court decided by a 5 to 4 vote that the
recent posting of copies of the Ten Commandments in Kentucky
courthouses violated the Establishment Clause. A key factor in the
Court’s decision was its conclusion that the displays lacked any
secular purpose. The initial display not only consisted solely of the
Ten Commandments, but it was installed in a quasi-religious ceremony
in which a local clergyman participated. Subsequent attempts to
sanitize the display by adding various documents such as the
Declaration of Independence were correctly seen by the Court majority
as a belated attempt to add secular window dressing. Moreover, the
Court characterized as pretextual the rationale offered for the
display during the course of the litigation, namely that the Ten
Commandments provided the “foundation” for the Declaration of
Independence, in particular, and American law in general.
In Van Orden, Justice Stephen Breyer switched, providing the McCreary dissenters (Scalia, Rehnquist, Clarence Thomas, and Anthony Kennedy) with the critical fifth vote. In Breyer’s view, the different factual background for the Texas case was sufficient to distinguish it from McCreary. In essence, he decided that a monument inscribed with the Ten Commandments that had been located along with sixteen other monuments and twenty-one historical markers in a “large park” near the Texas State Capitol for over forty years, without triggering any protests, could not be said to constitute an establishment of religion. Breyer followed what might be charitably characterized as a pragmatic approach to the Establishment Clause. He reasoned that one of the underlying purposes of the Establishment Clause is to prevent divisiveness; in his opinion, removing the Texas monument would likely cause more religiously inspired animosity and rancor than leaving it in place.
Although Breyer’s decision to side with the Court’s conservatives is disappointing, the differing results in McCreary and Van Orden had been predicted by some and for reasons similar to those noted by Breyer. It is one thing to prevent new displays of the Ten Commandments from being posted or erected, but to order the removal of hundreds of existing monuments would have engendered vehement opposition and resistance, however correct and appropriate such a result would be from the standpoint of constitutional law. Breyer decided that a strict interpretation of the Establishment Clause had to bend to the pressures of political reality. Significantly, Breyer did not endorse the reasoning set forth in either Rehnquist’s or Scalia’s opinion; he limited himself to concurring in the judgment.
This is significant, because Scalia’s McCreary opinion, in particular, is a cause for grave concern. Scalia unqualifiedly rejected the principle that government cannot favor religion over irreligion, characterizing it as “demonstrably false.” According to him, the “words of the Constitution” do not support such a principle. Instead, Scalia proclaims that the Constitution does allow the government to prefer “monotheistic” religions, by which Scalia means Christianity, Judaism, and Islam. Leaving aside the question of whether Christianity, a religion with three deities, is accurately described as monotheistic, one might ask, “Where in the Constitution are the words that support Scalia’s principle?” Of course, there are none; our Constitution is godless. It is, fortunately, entirely bereft of invocations of deities, monotheistic or polytheistic, such as those found in many countries’ constitutions. Despite Scalia’s oft-proclaimed adherence to the original intent of the framers, he does not hesitate to put his own gloss on the Constitution when it suits his purposes.
By itself, Scalia’s desire to mold the Constitution to suit his ideology may not be particularly surprising or troubling. He is not the first nor the only justice to interpret the Constitution through the prism of his own beliefs. However, Scalia combines his interpretation with a disregard for the rights of minorities, which is truly shocking for a justice who, at times, has held himself to be a supporter of individual liberty. According to Scalia, in cases such as McCreary and Van Orden, there are two competing interests: “On the one hand, the interest of [the] minority in not feeling ‘excluded’; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people” (emphasis in original). In other words, the Constitution now protects collectives and not individuals? The religious majority has an “interest” in ensuring that their beliefs are prominently displayed, endorsed, and applauded by the government and in forcing others to acknowledge their beliefs? The majority is now identified as the true “people” of the United States? My advice to Justice Scalia is this: Why not just substitute “Volk” for “people” and be done with any pretense of respecting individual freedom of conscience? Let’s have the government inscribe “Gott mit uns” on our belt buckles, and we can all march off merrily, supplicating God and protecting the interests of the Volk.
As Justice Souter observed, Scalia’s views are nothing short of “remarkable.” He said that, effectively, Scalia maintains “that government should be free to approve the core beliefs of a favored religion over the tenets of others” which is “a view that should trouble anyone who prizes religious liberty.” Indeed.
This view is especially troubling given the announcement of Justice Sandra Day O’Connor’s retirement. O’Connor was not always the staunchest defender of freedom of conscience, but she could usually be relied upon in critical cases, as evidenced by her votes in both McCreary and Van Orden. Unlike Breyer, she voted against the constitutionality of both the Kentucky displays and the Texas monument.
The good news from the Ten Commandments cases is that the critical principle of neutrality between religion and nonreligion has been reaffirmed. The bad news is that it was reaffirmed by only the slenderest of margins.
At the time of this writing, President George W. Bush has nominated John Roberts to fill O’Connor’s position. Not much is known about Roberts’s views on church-state separation, but Bush is on record as stating that Justice Scalia holds the type of views he is looking for in a Supreme Court justice. Rough times may lie ahead for freedom of thought.
Ronald A. Lindsay is a philosopher and a lawyer. He authored the amicus curiae brief that was submitted on behalf of the Council for Secular Humanism and the International Academy of Humanism in McCreary County v. ACLU of Kentucky. He practices law in Washington, D.C.
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