There’s no shame in being confused by the competing holdings in the Supreme Court’s two Ten Commandments cases, which elicited ten separate opinions authored by seven of the nine justices. Only Ruth Bader Ginsburg, who voted against both displays, and Anthony Kennedy, who voted for both, were silent. Surprisingly, Sandra Day O’Connor didn’t provide the swing vote in the two 5-4 decisions. Uncharacteristically consistent in her opposition to both displays, she ceded that honor to Stephen Breyer, who supported the majority opinion in McCreary and provided the fifth vote in favor of the monument at issue in Van Orden v. Perry and frankly acknowledged his debt to O’Connor, who remains the grey eminence of the current Court’s establishment jurisprudence.
For Breyer, as for O’Connor, the First Amendment religion clauses defy the articulation of a clear principle that can inform our line-drawing in every case. There is, he says in Van Orden, "no single mechanical formula that can accurately draw the constitutional line in every case." What is called for in these "difficult borderline cases" is "legal judgment," which "is not a personal judgment," but one that "must reflect and remain faithful to the underlying purposes of the Clauses," and that "must take account of the context and consequences measured in the light of those purposes."
For an account of those underlying purposes, Breyer and the McCreary majority are indebted to O’Connor, who obliges us with a brief statement of her self-consciously "statesmanlike" views. Our challenge, she says, is to preserve "religious liberty to the fullest extent possible in a pluralistic society":
Our Founders conceived of a Republic receptive to voluntary religious expression, and provided for the possibility of judicial intervention when government action threatens or impedes such expression. Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices. When government associates one set of religious beliefs with the state and identifies non-adherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship. In the marketplace of ideas, the government has vast resources and special status. Government religious expression therefore risks crowding out private observance and disturbing the natural interplay between competing beliefs. Allowing government to be a potential mouthpiece for competing religious ideas risks the sort of division that might easily spill over into suppression of rival beliefs. Tying secular and religious authority together poses risks to both.
Here we have two themes at work. The first is the "endorsement test" first articulated by O’Connor in Lynch v. Donnelly, a case about a nativity scene in Pawtucket, Rhode Island: if government appears to be endorsing religion, it sends a message to non-adherents that they are outsiders. The second is the related fear of the religious conflict occasioned by the existence of "outsiders" and "insiders." In a pluralistic society, government protects religious liberty and maintains religious peace only by scrupulously avoiding the appearance of taking sides.
Whatever merits this view has, it is not obviously the view of the authors and adopters of the First Amendment. The Founders certainly wished to avoid the establishment of a national religion, by which they meant the exclusive support of one or another denomination, coercing the consciences of citizens by compelling them to profess beliefs that they do not hold and to pay to support preachers and doctrines they do not countenance. This abhorrence of actual coercion is a clear line in the sand, one that the First Amendment says the national government may not cross.
Of course, in the view of the Founders, the best defense against such an establishment is not words on a piece of paper, not a mere "parchment barrier," but rather religious pluralism itself. As James Madison reminds us in Federalist #51, "In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects." In a genuinely pluralistic society, the give-and-take of politics conducted by worried minorities, all eager to have half a loaf rather than none, will militate against the seizure of power by an oppressive religious majority. When and if a group overreaches, the others will unite to fight back.
In Federalist #51, Madison also notes a less appealing mechanism for protecting rights: "creating a will in the community independent of the majority—that is, of the society itself," somewhat like the federal judiciary has come to be. "This," he continues, "at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major as the rightful interests of the minor party, and may possibly be turned against both parties." As many have observed, the Court that gave us Brown v. Board of Education also gave us Dred Scott v. Sandford. The legitimate authority of the judiciary is tied to that of the constitutional will of the people. When it exercises what is arguably political judgment, preferring (as the McCreary majority self-consciously does) its own precedents to the original intent and seeking a result not directly mandated by the constitutional language, it becomes a political actor, usurping the role that ought to be played by legislatures.
That the Court in this case has overstepped its bounds is clear enough from a consideration of Souter’s opinion for the McCreary majority. Asserting that there are competing values in the First Amendment, "each constitutionally respectable, but none open to realization to the logical limit," Souter contends that "trade-offs are inevitable, and an elegant interpretive rule to draw the line… is not to be had." All we have, he says, is "the principle of neutrality," which can provide "a good sense of direction," helping us to "protect the integrity of individual conscience in religious matters" and "to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate." While he concedes that there are many among the founding generation who behaved as if government could endorse religion without violating the First Amendment, he denies that this evidence is conclusive:
The fair inference is that there was no common understanding about the limits of the establishment prohibition… What the evidence does show is a group of statesmen… who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined. And none the worse for that. Indeterminate edges are the kind to have in a constitution meant to endure, and to meet "exigencies which, if foreseen at all, must have been seen dimly, and which can best be provided for as they occur" [citation omitted].
This abuse of Marshall’s opinion in McCulloch v. Maryland is a classic statement of the "living Constitution" doctrine, which asserts that it is the task of judiciary to adapt the Constitution to changing circumstances. A more faithful reading of Marshall’s argument would suggest that making use of general provisions is the responsibility of the political branches.
The result of the Court’s activism, in this case as in others, is to supplant and distort the political process of accommodation that would otherwise occur. When the Kentucky counties posted their Ten Commandments displays, the ACLU immediately filed suit. The ensuing debate led to revisions of the displays that contextualized the role of the Ten Commandments in American legal history and culture. This is, perhaps, as it should be, with legislators responding to the intense views of even a minority of their constituents, learning as they go along how to conduct themselves so as to welcome and respect all members of a religiously pluralistic society. But the Court ruled against the results of this political exchange, finding that the display’s allegedly unconstitutional initial purpose tainted the entire process of accommodation.
While there surely was tension and contention in the debate occasioned by the posting of the Ten Commandments, it is not clear that judicial intervention has calmed the waters in a manner that political give-and-take could not have accomplished on its own. Rather than avoiding a divisive distinction between "insiders" and "outsiders," the Court has simply relabeled the groups. Those who wish for there to be mere public acknowledgement of the role of religion in our law and morality are outsiders; those who wish to secularize our public spaces are insiders.
Of course, Breyer’s controlling opinion in Van Orden seems to accommodate some religious expression in the public arena, but it does so in an odd way. So long as the monument on the capitol grounds can be understood to convey not only a religious message, but also a "secular moral" and "historical" message, it may be permissible. Its anodyne character can also be inferred from the fact no one objected to its presence for forty years:
[T]hose 40 years suggest, more strongly than can any set of formulaic tests, that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over non-religion, to "engage in" any "religious practice[e]," to "compel" any "religious practice[e]," or to "work deterrence" of any "religious belief" [citation omitted].
On the one hand, Breyer suggests that long-standing public acceptance or toleration of such a monument indicates that it is acceptable. Either the process of political accommodation has worked, or it truly is an example of "ceremonial deism," the kind of meaningless public religious expression that everyone discounts.
On the other hand, any objection at an earlier stage would have rendered the monument problematical. Breyer thus invites those who would expunge all religious expression from our public spaces to be vigilant, so that their objections are made in a timely fashion, before his informal "statute of limitations" on challenges can run out. In other words, a court challenge is itself evidence of the kind of divisiveness the First Amendment is said to be intended to calm. For Breyer, to challenge in a timely fashion is then effectively to be guaranteed victory.
Here is how the Supreme Court’s apparently conflicting Ten Commandments decisions can be reconciled: don’t wait to litigate; never try to accommodate. While purporting to promote a peaceful public arena, the effective majority would rather short-circuit the political process in favor of the kind of intransigent claims we advance in courts. Such leadership and statesmanship as can be brought to bear in these cases will come only from the judges themselves. Rather than permitting pluralism to work in its untidy but ultimately benign way, the courts will protect us from ourselves.
What the Court proffers us, in the final analysis, is a kind of judicial guardianship virtually guaranteeing a perpetual political adolescence. We cannot, Breyer and his brethren imply, be trusted to govern ourselves. Whatever they might have thought of the results reached in these two cases, the Founders must be rolling in their graves as they contemplate the reasoning the Court used.
Joseph M. Knippenberg is an adjunct fellow of the Ashbrook Center. He is Professor of Politics and Associate Provost for Student Achievement at Oglethorpe University.