THE SUPREME COURT OUGHT TO uphold the several displays of the Ten Commandments on government property whose constitutionality it considered last week. But how might it do that?
If the Court had a sense of humor, perhaps it would sustain the displays (the cases are from Texas and Kentucky) by observing that the Decalogue is foreign law, and that foreign law is always good law, often even better than our own. Think of the opinion that could be crafted, perhaps by Justice Anthony Kennedy, who last week cited developments in foreign law in declaring that the Constitution condemns capital punishment for crimes committed by persons under 18. Kennedy could observe that the Decalogue was received on Mt. Sinai by one Moses, an Israelite from Egypt, and that it was originally written in Hebrew, and that it has been translated the world over, and that . . .
Of course, the Court isn't going to hand down any such opinion (though it would be interesting to see how it dealt with the part about the text coming from the finger of God). Instead it is going to produce a ruling that applies First Amendment jurisprudence. One trembles at the thought: No area of constitutional law is in a state of greater confusion.
Over the years, the Court has invented first this test, then that to determine whether government involvement with religion violates the First Amendment's ban on establishment. The Court has searched for illicit purposes and bad primary effects and excessive entanglements. It has asked whether government is endorsing religion such that non-adherents feel they are outsiders and adherents insiders. It has theorized that "a reasonable observer" can reliably tell us whether unconstitutional establishment has occurred. It has set forth a "coercion" test to make sure that government doesn't force people to support or participate in religion, and has regarded even "peer pressure" as unconstitutionally coercive.
The Court has used one test for one case, another test for another, and sometimes it has wearied of its tests and used none at all. In 1984, confronted with the question of whether chaplaincies in legislatures violate the First Amendment, the justices said they'd rather shelve their tests than strike down a practice dating to the very first Congress. So whatever has a long history that has "become part of the fabric of our society" and is a "tolerable acknowledgment of beliefs widely held among the people of this country" may well escape condemnation under the First Amendment--unless the Court decides otherwise.
Last year in the Pledge of Allegiance case (does "under God" violate the First Amendment?), Justice Sandra Day O'Connor proposed yet another test--a four-parter. Government may acknowledge religion so long as the policy or program or action at issue satisfies standards of "history and ubiquity," does not include worship or prayer, is "nonsectarian," and possesses "minimal religious content."
In last week's Ten Commandments case from Kentucky, the Court is being asked to apply this four-part test. Advocates out to prove that the display in one county courthouse has "minimal religious content" have counted the words it contains (not just in the Decalogue but also in the Star-Spangled Banner, the Mayflower Compact, the Bill of Rights, the Magna Carta, the National Motto in the Great Seal of the United States, and the Preamble to the Kentucky Constitution) and found that of the 8,462 words in the entire exhibit only 199 are in the Ten Commandments, and the words "God" and "Lord" occur only four times. To think that constitutional law might come to this.
The Court could usefully set aside its many tests and instead consider what various majorities have affirmed on no fewer than five occasions since 1952, to wit: "We are a religious people whose institutions presuppose a Supreme Being." As such a people, Americans for more than two centuries have made that presupposition explicit in numerous ways that involve government. Think of the words "In God We Trust" on our coins or the aforementioned legislative chaplaincies. The Ten Commandments displays do the same thing--a point Justice Scalia was making, if clumsily, when he said during the argument in the Texas case that "government comes from God. That's what this case is about."
The question for the Court is whether the First Amendment really does prevent public displays that indicate what our institutions presuppose. One is hard pressed to discern in the original meaning of the religion clause a rule that says, "Thou shalt not." Which is why these displays of the Ten Commandments deserve to survive the Court's review.
--Terry Eastland, for the Editors