The Breakfast Table

Nine Justices, 10 Opinions, Two Cases

Dear Dahlia and Tim,

Dahlia, I think you are quite wrong to disparage the significance of what the court did today. I understand your point as applied to the particular facts before the court: Who cares one way or another, or should care, whether a set of commandments that can be displayed on private property all over town can be on public premises as well? But that is a misleading question. Of course the litigated cases are at the margin. The big split is over whether government officials can use their government offices to actively promote religion. That question, however you want it resolved, is not a small thing. And the court split 5-4 on that fundamental question. The less significant split is among the majority in McCreary—Justices Souter, Ginsburg, Stevens, O’Connor, and Breyer, and really, at bottom between O’Connor and Breyer, about how you judge whether religion is in fact being promoted by government. Each applies the right principle in my view while understandably coming to different conclusions on the facts of one of the two cases.

The heart of today’s rulings seems to be this: Four justices (Rehnquist, Scalia, Thomas, and, apparently, Kennedy) are willing to hold that government officials may actively and deliberately promote religion. Five justices (Stevens, Ginsburg, Souter, O’Connor, and Breyer) believe that government itself has no business promoting religion. These five held unconstitutional the display of the Ten Commandments in a Kentucky courthouse. Justice Breyer, however, parted company with his colleagues and voted to sustain a display of the commandments on the grounds of the Texas state capitol.

One key factor seems to explain Justice Breyer’s decision to uphold the Texas display while voting against the Kentucky one: He simply recoiled at the divisiveness he thought would ensue if courts ordered the removal of hundreds of displays of the commandments around the country, like the Texas monument, that have been around for a long time. The prospect of bulldozers and forklift trucks descending on scores of towns was the fear that led him, in his controlling opinion in McCreary, essentially to grandfather displays that have been around for decades. (At least, that is, older displays that don’t promote religion in extreme ways and are not on public school grounds.) Very little separates Breyer from O’Connor, who voted to hold both displays invalid; Breyer, I think, would join her in barring the Texas display along with the Kentucky one if it were being proposed for installation today.

Jokes will fly on late-night television about how nine justices wrote 10 opinions in the two cases. Sarcasm will be everywhere (beginning with Scalia’s insincere reference to O’Connor’s “stirring” opinion). Much will be said about the “disarray” and “confusion” of the court’s work today. I disagree. There is a narrow but clear majority for some very simple propositions. Close cases are unavoidable. But the correct legal standard is really very simple: “Government religion bad; private religion good.” Under this test, the Establishment Clause is not violated by:

1) Public displays of the Ten Commandments in the 90 percent of places that do not belong to the government. Obviously, every church, department store, amusement park, shopping mall, and office building in America can display the Ten Commandments prominently and can even proclaim: “Read These and Obey!” Only premises owned and controlled by government are even at issue in these cases. So, we are not talking about a “Naked Public Square”; “Naked Government Office Buildings” is more like it.

2) Even public displays of the Ten Commandments in government buildings and on government property are not a violation of the Establishment Clause where private citizens and groups are responsible for the display, like the Ohio group that put a Christian cross on the grounds of the state capitol under a set of rules that allowed other groups to put up their own displays. (In my view, Justices Stevens and Ginsburg were wrong several years ago to dissent from this proposition, ignoring the “private religion good” part of the simple two-part Establisment Clause rule.)

3) That brings us to today’s cases, which involve situations in which government officials decided to place religious displays on governmental property. For Scalia, Thomas, and Rehnquist, and to some lesser degree for Kennedy, even this is OK.

What many of the followers of former Alabama Chief Justice Roy Moore seem to want is government endorsement. When the Ten Commandments tablets were set for removal from Moore’s courthouse, offers poured in from around the country to move them to public places, like a giant amusement park, where they would have been seen daily by thousands. But many of Moore’s followers had no interest in displaying the commandments anywhere other than in a government building.

I did find O’Connor stirring today, in her concurrence:

At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. … Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly.

This does not signify “next to nothing.”