Two important cases are headed to the Supreme Court that should be of interest to Christians of all stripes and especially to Catholics. Both cases have to do with the religion clauses in the First Amendment. Those two parts, no establishment and free exercise, are sometimes in tension; that is, a ruling on no establishment may very well impact someone’s free exercise. The first case has to do with a recent state law mandating the Ten Commandments be displayed in Louisiana public schools. Though the dispute is not far enough along to be appealed to the Supreme Court (SCOTUS), it seems likely that the court will grant certiorari—that is, it will accept the case.
The second case involves St. Isidore of Seville Catholic Virtual School—a Catholic charter school managed by the Archdiocese of Oklahoma City and the Diocese of Tulsa and Eastern Oklahoma. It is argued as a no establishment case by the opponents of the school and a free exercise case by the school itself.
This article addresses the Louisiana Ten Commandments situation. A second article will examine the Oklahoma Catholic charter school question.
A Brief History
An appropriate starting point is Everson v. Board of Education of Ewing Township (1947), which had to do with reimbursement for transportation and book costs to parents who sent their kids to a religious school. SCOTUS barely decided in favor (5–4) of those seeking reimbursement, but for the winning side, the decision was something of a Pyrrhic victory. Both the majority and minority justices chose Thomas Jefferson’s “wall of separation” phrase as the “constitutional doctrine” to decide the Everson case and future cases. That doctrine has not always been friendly to those of a religious persuasion. As many know, the phrase comes from Thomas Jefferson, who used it to assure a Baptist congregation that it need not fear federal government intrusion, but it has evolved—or devolved, depending on one’s point of view—over time.
“We are a religious people whose institutions presuppose a Supreme Being.”
Ever since, certain justices and laity alike have questioned whether the wall of separation concept has been the proper basis by which to interpret the establishment clause. The late Chief Justice William Rehnquist was one of those voices, and he and others have observed that in societies where religion is allowed to flourish, liberty may be better protected than it might be elsewhere.
Assuming the Louisiana case makes it to Washington, a court majority may conclude the wall of separation doctrine has outlived its usefulness. Some argue the concept is too vague to offer guidance on religious cases. To be sure, the wall of separation idea is at least as vague as the no establishment clause itself, perhaps even more so. Over the years, some of the justices have been uncomfortably aware that they have not given clear guidance on these kinds of issues, although other justices feel that the religion clause of the First Amendment is such that we will always need the Court to tell us what it means if we are to remain a nation of religious tolerance.
Whatever one’s attitude, since Everson, the Court has had to decide at least eighty no establishment cases. This suggests Supreme Court failure. It implies that no matter how many times the Court has tried, it has been unable to offer reliable guidelines on these issues. This means the Court has been unable to fulfill one of its most important functions: providing clarity and predictability in law and jurisprudence. Hence, the questions keep bouncing back to the Court. At best, all must agree that if a wall of separation exists, it is as serpentine as the Great Wall of China.
Not surprisingly, the Court tried to clarify the issue in Lemon v. Kurtzman (1971), a case related to support for religious schools in the form of reimbursement for school materials and subsidies for teachers. The Court adopted the “Lemon Test” to evaluate whether a given law violates the establishment clause.
- The law must have a secular purpose
- The law must not advance nor inhibit religion
- The statute under consideration must not foster an excessive entanglement with religion.
The decision in Kurtzman was a rare unanimous vote: 8–0. (Justice Thurgood Marshall did not participate) and no doubt there was a sense of euphoria in the Court. That consensus, however, was short lived as the Court sought to apply the Lemon Test to successive cases, especially those involving aid to schools with a religious affiliation. One case after another produced a badly splintered vote. Justice Rehnquist later said the Lemon Test created “an insoluble paradox.” Justice David Souter admitted in a separate case the test was “rarely dispositive.” That’s a euphemistic way of saying the Lemon Test doesn’t work. (It is only slightly more unreliable in decisions about used cars.)
Safe Spaces and Moral Value
One argument against the Bayou State complains that posting the Ten Commandments in classrooms will make non-believing students feel “inferior” and that such a law is nothing more than “proselytizing.” The entire school, then, must be a kind of safe space so students are not damaged by lurid classroom mandates like “Honor your father and your mother.” Consider, moreover, the injury to a fourteen-year-old girl’s self-esteem if she is forced to read “Thou shalt not bear false witness against thy neighbor.”
What Christians Believe
Get This $2 Book!
But wait ... doesn’t the nationwide plague of malicious bullying have something to do with telling lies about other students to ostracize them? Surely there is moral value in the Ten Commandments.
The Little Young Santa Asleep on the Hay
In the 1984 Rhode Island case Lynch v. Donnelly, the Court established what is known as the “reindeer rule.” This means that a manger scene may pass constitutional muster if it includes a secular holiday display as well. Everything must be arranged so that the religious display does not appear to predominate the secular. A misplaced angel could be fatal.
Members of the Supreme Court must be grateful their Ivy League educations have equipped them to render Solomonic decisions on disputes involving the arrangement of camels, reindeer, elves, and candy canes. Yet even with that preparation, guessing the constitutionality of public manger scenes can be as mysterious as consulting the Delphic oracle in ancient Greece. Adjudicating public crèche displays has become quite tedious, if not maddening—and sometimes a little comical.
In the McCreary County decision (2005), the local government twice rearranged its display to try to satisfy litigants but to no avail. In another case, Allegheny v. ACLU (1989), the county tried to thread the same needle. The case involved two different holiday displays: one in a prominent location inside the Allegheny County Courthouse and the other outside the building. The first display, which the Court ruled unconstitutional, included only a nativity scene and a religious message: Gloria in Excelsis Deo.
The Court took issue that the nativity scene stood alone, had an overtly religious message, and was on a main location inside the government building. The second display, this time outside and less imposing, included a menorah, a Christmas tree, and a sign with a message about liberty and freedom. The Court was satisfied that the display was “conveying the city’s secular recognition of different traditions for celebrating the winter-holiday season.”
Perhaps, though, such criticism is unwarranted. Maybe it only takes a little imagination to achieve a winning display. If parity is the goal, why not compare the individual items in displays one with another, rather than just comparing the entire displays with each other? Would it not be more reliable to ensure a one-to-one correspondence between the items in both? Accordingly, Jesus might be paired with Santa, and the manger matched with a toy workshop bench. Joseph and Frosty seem an apt balance, and why not the wise men with an equal number of elves?
For good measure, equip each shepherd with a candy cane staff.
Admittedly, crèches may still create a conundrum, but the American entrepreneurial spirit comes to the rescue. The Outdoor Nativity Display Store, in addition to providing quality outdoor manger scenes, includes an ongoing review of the latest SCOTUS decisions regarding crèches to guide holiday purchases. It is a one-stop-shop: complete nativity sets, smaller holy family collections, tasteful add-on pieces—and jurisprudence. So much for the money.
Something and Nothing
Another stipulation that came out of the Everson case asserts that not only can the government not favor one religion over another, it cannot favor religion over “nonreligion.” In a later case, the late Justice Antonin Scalia called the assertion “demonstrably false,” and time seems to be proving the Catholic justice right. It is largely a meaningless phrase that has done nothing more than muddy the constitutional waters. Scalia noted that a line out of a 1952 case (Zorach v. Clauson) states, “We are a religious people whose institutions presuppose a Supreme Being.”
Past Watchful Dragons
Classic Bible Stories Retold
If the idea of treating religion and irreligion seems vague and unworkable, you are not alone. It is ontologically difficult to compare something with nothing. Aside from such a hopelessly abstract comparison, the major complaint is that giving religion and irreligion equal status is that religion inevitably suffers discrimination. In the words of one court case, such a position amounts to fabricating a theoretical “religion of secularism.” In the McCreary County case in 2005 dealing with a courtroom display of the Ten Commandments, Justice Scalia noted:
The three most popular religions in the United States, Christianity, Judaism, and Islam—which combined account for 97.7% of all believers ... believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life.
Even Justice Stephen Breyer—not counted among the conservative justices—noted that “in America the spirit of religion and the spirit of freedom” have coexisted, and still can, in harmony. Given that the Judeo-Christian heritage far outweighs any other religion, it is not clear why the Constitution mandates strict impartiality, even in our pluralistic society. Must Zoroastrianism share an equal place with Judeo-Christianity? It seems unreasonable if not silly to say the Constitution requires such an accommodation.
City of God, City of Man
In the modern age, the Catholic Church consistently recognizes the value of a separation of church and state. There is no better starting point in this consideration than St. Augustine’s City of God, which reminds us that the city of God will never be the city of man, nor the city of man, the city of God. In his elegant encyclical Deus Caritas Est, Pope Benedict XVI explains,
fundamental to Christianity is the distinction between what belongs to Caesar and what belongs to God (cf.Mt22:21), in other words, the distinction between Church and State, or, as the Second Vatican Council puts it, the autonomy of the temporal sphere.The State may not impose religion, yet it must guarantee religious freedom and harmony between the followers of different religions.
Indeed, the pope insists that a recognition of the distinct spheres of church and state is essential to the proper fulfillment of the Church’s responsibilities.
It is a matter, however, of reaching a consensus of what the Constitution requires. Justice Clarence Thomas argues the Court should return to the simple understanding of no establishment, which means the state may not officially recognize and support one particular religion or denomination. On the other hand, Justice Breyer has rightly reminded us of the calamity of modern religious-affiliated wars in Ireland, the Balkans, and the Middle East. What is needed is “juris-prudence”—that is, the Aristotelian-Thomistic intellectual virtue of prudence—applied to the Constitution.
Finally, what should we expect from the Louisiana Ten Commandments case once it reaches the Supreme Court? In Stone v. Graham (1980), the Supreme Court held a Kentucky statute requiring the posting of the Ten Commandments in every public classroom unconstitutional. Members of the Court could simply rely on that precedent and get to their summer vacations on time. On the other hand, and given the present composition of the Court, the justices may take the opportunity to cast further doubt on the wall of separation doctrine, and maybe discard the nonreligion/religion diktat. Given the Court’s growing support of states’ rights, the justices may just punt and suggest the Louisiana legislature sort it out when it reconvenes on the second Monday of April in 2025.
