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"?)
Justice Stephen Breyer seemingly wants to decide these disputes case by case, and he suggests that the Texas monument isn't all that divisive. (Hello? Justice Breyer? Roy Moore?)
Kennedy—who truly has found religion over the years—says, "You are telling us the state can't accommodate religion. You are asking religious people to surrender their beliefs."
Greg Abbott is the attorney general representing Texas, and he takes an unlikely hit from Scalia when he suggests that posting the commandments differs from posting a 6-foot crucifix because the former sends a secular message. "But it's not a secular message! If you're watering it down to a secular message I can't agree with you," says Scalia. (Told you he's honest.)
Everyone thinks O'Connor's vote will be crucial in both cases, and although she roughs up Chemerinsky on how hard it is to draw lines, she points out to Abbott that "every monument on the Texas grounds conveys a message of state endorsement." Justice David Souter directs everyone's attention to the frieze on the wall of the courtroom, pointing out that "Moses is up here in the company of other lawgivers." Whereas the only common theme in the Texas monuments is that it's a "grab bag of other symbols." Abbott goes for the jugular, pointing out that one of the worst constitutional offenders around is yet another, less prominent depiction of the commandments at the Supreme Court itself, displayed without a clutch of secular symbols to immunize it: "It's just on a doorway with an eagle over it," he crows.
Paul Clement represents the Bush administration, which in both cases has taken the side of the commandments displays. Ginsburg asks him whether you can put the commandments in the rotunda of a court. But Clement isn't following her there.The district court that looked at Roy Moore's display found it to be a "religious sanctuary within the court." He concedes that the rotunda hypothetical "probably does cross the constitutional line." The fact that onlookers actually dropped to their knees and prayed when they saw Moore's display was a good clue. If the court is looking for yet another possible Establishment Clause test, maybe it should ask whether the monument inspires actual pilgrimage.
Chemerinsky's rebuttal points out that the two questions in this case are resolved by solid precedent. Stone v. Graham establishes that the commandments convey a religious message. And County of Allegheny v. ACLU establishes that states may not relay a single religious message in the absence of a larger multi-religious context. "What's left of the Establishment Clause," he asks, "if you can say the offended observer can just avert his eyes?"
Onward to the Kentucky case, then, where Mathew Staver of the Liberty Counsel represents the display that surrounds the Ten Commandments with every other foundational document, and his argument is that by relentlessly focusing on the county government's original purpose for posting the commandments, the justices would imply that nothing could be done to make unconstitutional displays constitutional. Souter asks whether every successive version of the display wasn't just "litigation-dressing."
Staver retreats to insisting that the purpose of even the original display was secular, specifically to show "the historic nature of the Ten Commandments as the foundation of American law." Again, this offends Scalia, who rears up to quote Justice William O. Douglas saying quite the opposite: "We are a religious people whose institutions presuppose a Supreme Being."
Ginsburg tries to go a different route, distinguishing the cases at hand from the court's historic indulgence of "In God We Trust" on coins. That "minimal reference" to the divine is quite different from "a powerful statement of the covenant God is making with his people," she says. Staver replies that the references to God in the commandments are minimal, too.
"Have you, um, read the first four?" queries Ginsburg.
Breyer steps in to speak for the court when he says: "I am looking for a key—what's too far and what's not. And all [the county] did was try to surround what went too far with things that make it OK." Paul Clement again stands to defend the monuments. He points out that for the court to focus solely on the illegitimate purpose in posting the original commandments by themselves would lead to the "crazy result" in which the current, contextual McCreary County display is unconstitutional whereas "every identical display in Kentucky is OK."
Ginsburg asks why it's acceptable for legislatures to open their sessions with a prayer after Marsh v. Chambers but unacceptable for the court to do so. "I'm not sure we don't," says Scalia. I don't know who we're addressing when we say, "God save this honorable court."
David Friedman of the ACLU speaks against the Kentucky display. He's given almost 10 minutes of open-mike time, as the justices are either too confused or too tired to fight anymore. He rests much of his argument on the expressly religious and sectarian purpose behind the initial display, quoting the county officials' unapologetic claims that "America is a Christian nation" and "Christ is a prince of morals" as well as their resounding support for Judge Roy Moore.
Breyer asks (probably to pre-empt Scalia), "What's wrong with saying there is a religious role in history?" Friedman replies that "there's a difference between saying that religion played a role in our history and saying it is the moral foundation." He adds that the counties were claiming the commandments as "the moral background of the Declaration of Independence."
"If that what it meant, that's idiotic," snaps Scalia. "You can't get the Declaration of Independence out of the Ten Commandments!"
Breyer asks which of the many tests swirling around Friedman would use: "The Endorsement test has stood the test of time," he replies, referring to Justice O'Connor's tweak to the Lemon test.
Ladies and Gentlemen: an answer. Sure, it doesn't come until the last six minutes of the argument. And sure, Friedman is choosing a test that would help his side. But having heard "it depends on the context" 50 times this morning, it's nice to hear at least someone suggest a principled rule for resolving future cases—as opposed to just these two. The court has painted itself into a corner. It's decided too many cases too narrowly and with too much attention to every menorah, pine needle, and reindeer on the scene. There's virtually no way to pull back now and do things differently. Come June, you'll likely know whether the displays in Kentucky and Texas are constitutional. But nothing at all about the ones in Ohio.
I wish there could be two Frays tonight: one for the law professors and scholars who truly believe in the commandments as a purely secular foundational document, and one full of the brave Scalia-like souls willing to admit that this case is about whether or not to welcome religion to the public square, pure and simple. I'd rather party with the second group. There's just not enough room for my huge pregnant butt on the head of that pin.