Imagine a bunch of elderly, black-robed medieval clerics absorbed in a scholarly dialogue on the number of angels (better make that "secular" angels—candy stripers or maybe Hell's Angels) able to dance on the head of a pin. You'd have a good idea of how oral argument went this morning in the pair of cases involving displays of the Ten Commandments on state property.
At one level everything appears scholarly and doctrinal. Until you realize that the doctrine is a mess, and the justices are so tangled up in old tests, old glosses on old tests, and new glosses on new tests that they don't even know how to talk about the Establishment Clause cases, much less how to resolve them. Perhaps the court is waiting to resolve the chaos until there are as many different Establishment Clause tests (legal scholars currently count about seven) as there are commandments.
The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion." That ban has been interpreted to sweep in state and local governments as well. The disaster-on-stilts the court has used to determine whether such an establishment has taken place is known as the "Lemon test," vomited forth upon the land in a 1971 case called Lemon v. Kurtzman. That test asked whether the government's conduct had: (i) a secular purpose; (ii) a principal or primary effect that neither enhances nor inhibits religion; and (iii) did not foster excessive entanglement with religion. Subsequent courts have dealt with Lemon either by modifying its various prongs (as Justice Sandra Day O'Connor did in a 1984 crèche case called Lynch v. Donnelly), manipulating it to produce desired outcomes, or ignoring the test altogether. At least six of the sitting justices have openly questioned the utility of the Lemon test. But of the alternative tests, nothing has so far proved more workable. As a result, the court spends the morning sorting among the rubble of discarded tests—all smashed up like Moses' tablets—and deconstructing hopelessly narrow, fact-specific old case law.
The first case is Van Orden v. Perry,and it was billed as the "easy" case, in that the state did just about everything right: There's a 6-foot monument to the commandments on the state capitol grounds in Austin, Texas, but it's displayed in a "museum-like" setting of 17 other monuments. It was given to the state by the Fraternal Order of the Eagles and has stood there since 1961 with a plaque saying it was a gift. Next the court hears McCreary County v. ACLU, a Kentucky case involving state-sponsored displays of the framed commandments, placed there at least originally for the express purpose of demonstrating "America's Christian heritage." This treads closer to the line of an Establishment Clause no-no. The Kentucky display went through three iterations before the counties wised up and nestled around the commandments some random secular documents, including the Mayflower Compact and the Magna Carta, in what I've previously dubbed the "Teddy Ruxpin Defense." Now the Kentucky display is supposed to be just a general tribute to democracy's "foundations."
The 5th Circuit Court of Appeals found the Texas display constitutional. The 6th Circuit struck down the Kentucky version.
Erwin Chemerinsky represents Thomas Van Orden, a Texas man who lives in a tent and survives on food stamps and doesn't like Austin's big old Ten Commandments. Van Orden briefed and argued his way all the way to the federal appeals court before handing the case over. Chemerinsky tells the court the commandments are an overtly "religious symbol." Justice Anthony Kennedy mutters over this "obsessive concern with religion."
Chemerinsky points out that the text on the Texas monument is not the Jewish version and thus alienating. But what about religions that don't accept the commandments at all? "Imagine a Muslim or a Buddhist," he begins. Justice Antonin Scalia cuts him off: "Muslims believe in the Ten Commandments," he says. "No, they don't," replies Chemerinsky. Scalia looks horrified, but without missing a beat he adds: "I think 90 percent of Americans believe in the Ten Commandments. And I bet 85 percent couldn't tell you what the 10 are." (This statistic is supported by the excited utterances of my cab drivers both to and from the court this morning.) Scalia's point here: "When someone walks by the commandments, they are not studying the text. They are acknowledging that the government derives its authority from God."
Preach it, Brother.
Throughout the morning it becomes increasingly clear that Scalia is the only member of the court who is being truly honest. His position: Sure, the display is religious and not secular. Let's put up some crosses, too, and have a revival meeting. In this sense, Scalia represents the vast majority of the protesters outside. They are not venerating the historical secular influence of the commandments, whatever the lawyers inside the courthouse may say. They just really like God.
Chemerinsky tries to tell Scalia that "government can't make some people feel like insiders and some like outsiders." Kennedy says this "seems like hostility to religion." (Hello? Justice Kennedy? Didn't YOU invent the, um, "Coercion test"?)