Listen to Dahlia Lithwick discuss this topic on NPR's Day to Day.
One hesitates to spill one more drop of ink over Chief Justice Roy Moore—the demagogue judge who heads the Alabama Supreme Court and who—as of midnight last night— is in violation of a federal court order to remove a 5,000-pound monument to the Ten Commandments from the rotunda of the Alabama State Judicial Building. Moore, who's made a career of confusing his bench with a pulpit, has evinced such contempt for the rule of law, the Constitution, and the rest of this nation that he's unworthy of another word. There is, however, a constitutional problem highlighted by Moore's conduct and by the popular support he's garnered in some circles. A sentiment expressed frequently by elected officials, religious leaders, and even the occasional U.S. Supreme Court justice is that the principle of separating church and state has morphed into unbridled state hostility toward the church. The founders of this country were, for the most part, deeply religious men. Would they, like Moore, object to the ways in which religion has been chased out of the public square?
The Constitution itself codifies two conflicting impulses. The First Amendment guarantees simultaneously that "Congress shall make no law respecting an establishment of religion" and that Congress won't "prohibit ... the free exercise thereof." Which one is it? How can Congress avoid promoting religion, while also encouraging its free exercise? One answer is that the "Establishment Clause" was not intended by the framers to erect an unbreachable "wall between church and state." Thomas Jefferson himself, who coined that phrase, had no compunction about holding church services in the chambers of the Supreme Court. One possible view is that the Establishment Clause was intended only to ensure that there was no official adoption of a state religion.
The Supreme Court has taken another tack. In a long line of cases beginning in 1946, with Everson v. Board of Education, the court set up the standard to be used in deciding Establishment Clause cases: "No tax in any amount, large or small, can be levied to support any religious activities or institutions." A doctrine was born. Wasting your time with the nuances of the so-called Lemon Test, the modern "refinement" of establishment-law cases set forth in Lemon v. Kurtzman, would be almost as pointless as wasting your time on Justice Moore. Suffice to say that in recent decades, the Supreme Court has asked whether the religious aid has some "secular legislative purpose," "neither advances nor inhibits religion," and does not foster "an excessive government entanglement with religion." Whatever. The test is disastrous, allowing, as Justice Scalia has observed, the court to reach the result it wants every time. Justices O'Connor, Kennedy, and Thomas have each made up new Establishment Clause tests in recent years, signaling that Lemon may be law, but it's stupid law.
Using these new tests, the court has eroded the wall between church and state to some extent. Religious claimants now have the same rights as the nonreligious in terms of school facilities, resources, and access. Last year's vouchers decision lowered the wall further. But outside the public school context, the test is essentially whether the state appears to be endorsing a particular religion (or religion in general over atheism). If the answer is yes, the display or prayer is impermissible. Recall that these cases concern public spaces, public schools, and public moneys. No one (except perhaps the neighbors) can stop Justice Moore from putting a 200,000-pound Decalogue in his driveway.
There are two ways to get around the prohibition against state-endorsed public displays of religious symbols or acts: One is to claim that the religious object or act is so "secularized" that it no longer has any religious meaning. The case that launched this doctrine was Marsh v. Chambers—involving taxpayer funding for chaplains in state legislatures. In Marsh, the court found that history acts as a spiritual Bermuda Triangle, with time acting as "a vehicle for altering the religiousness of certain practices and symbols." This has been the basis of the court's acceptance of the word "God" in state invocations and—at least as they've suggested in dicta—on coins or the Pledge of Allegiance. The argument is that the religious element of the word "God" is purely historical and thus devoid of religious meaning. This of course leads to stunning judicial disrespect for religious icons—hardly the result religious Americans can desire. In one case the court reduced a crèche to the religious equivalent of a Happy Meal: "engendering a friendly community spirit of good will in keeping with the season."
There is another way to get around the Establishment Clause and this seems to be Justice Moore's tack: Ignore it. Moore and his followers are not arguing that the Ten Commandments are a secular symbol. Yes, he pays lip service to the commandments as the "foundation of Western Law" (although at last count only two are legally binding on the states). But what Moore and other Decalogists seek to do is inspire religious zeal, restore religious practice, and stop the godless young hooligans and abortion seekers in their tracks. In short, he wants to proselytize, and he's been open about that project from the start.
There is an irony here. The free speech provision of the First Amendment accords the greatest respect to the loudest, rudest speaker. The Establishment Clause accords the least respect to the loudest, most zealous preacher.
So, what do we do about the fact that the current First Amendment jurisprudence is not neutral toward religion but instead seems to persecute the true believer? To quote a more respected jurist than Moore, Chief Justice William Rehnquist wrote, in a dissent in a case prohibiting prayer before school football games: "[The majority opinion] ... bristles with hostility to all things religious in public life." Is it possible for the state to celebrate a plurality of religions without establishing one or several as more legitimate?
No. Because we live in a zero-sum constitutional world. In order to be "neutral" toward all religions, including atheism, the courts have had to erect equal barriers to all. In order to privilege no religion (or even non-religion) the courts have elected to privilege none. This includes the vague "Judeo-Christian" theism that most Americans would probably like to see more of in the public square.
Is there an alternative? Justice Clarence Thomas holds that the state should be "neutral" toward religion and allow people to make free choices. But wouldn't such a "free market" lead inexorably to Moore's world—in which the majority decides which religion the state should endorse? And isn't that why the people first boarded freezing, leaky boats over here from England? That's why the sensibilities of Buddhists and Zoroastrians count—at least in this case—more than the wants and desires of the majority of religious people who may simply wish to practice their faith in public spaces.
That seems unfair to religious citizens who seek some sort of "balance" in the law—equality for religious and atheist alike; equality for majority and minority religions. But what does "equality" mean when you're talking about religion and particularly state-sponsored religion? Doesn't it mean that some religions will necessarily be more equal than others? The framers seemed to think that was an appalling prospect for religious freedom.
One of the hard lessons of the religion cases is that if the public square is going to welcome everyone, it cannot necessarily welcome all of their gods. Perhaps the most American sentiment of all is the faith that somehow, He will be there anyhow.