PECULIARLY IMPROPER TO OMIT:

Dicta: Establishing Jurisprudence (Dahlia Lithwick, 12-01-2004, The American Lawyer)

The U.S. Supreme Court recently agreed to hear a pair of cases testing the constitutionality of displays of the Ten Commandments on government property. The Court finally agreed to reconcile conflicting lower rulings-concerning the display of a six-foot monument on the grounds of the Texas State Capitol in one case, and another involving framed copies of the commandments on Kentucky courthouse walls. The two cases have legitimate differences: The Texas display is part of a collection, the Kentucky "collection" sprung up to protect the display. The Texas monument is in a "museum-like" setting. The Kentucky display is on a court wall. The Texas Commandments monument was a gift, and has stood uncontested for decades. But underlying all the details is a profound problem: a tendency to disregard the religious in our religion cases.

Having avoided this issue for decades, the Court must now reexamine the carnage left in the wake of its batty establishment clause jurisprudence-a line of cases effectively holding that it's okay for the state to erect Christmas crèches and such on public property, so long as the ratio of Santas to Sponge Bobs in the manger is roughly equivalent. As a result of this lack of guidance, lower courts have been forced to take the religious display cases to mean it's fine to display the Decalogue, so long as it's lost in a clutch of other "historical" documents. Copies of the Magna Carta, the Declaration of Independence, Christopher Columbus's traveler's checks-all this stuff somehow immunizes a religious display from endorsing or advancing religion; perhaps because all that clutter endorses and advances only headaches.

As a result of this line of inquiry, courts across the land have upheld religious displays using what Justice Anthony Kennedy once dubbed "the jurisprudence of minutiae"-the theory that public land becomes more like a "museum" if you've amassed enough tchotchkes for God. This constitutional compromise only ensures both sides will be offended: Atheists are still affronted that the state is promoting any religious symbols, believers are annoyed that cherished icons are awash in a sea of knickknacks. [...]

What if we could rewind constitutional history and erase the idea that the folks promoting religion in these cases are actually promoting secular historicism or ceremonial deism? (After all, some American law also has roots in the Napoleonic Code, but we’re not clamoring to erect courthouse monuments to Napoleon.) What if we could concede that Chief Justice William Rehnquist was right in his dissent in a public prayer case when he noted the majority opinion “bristles with hostility to all things religious in public life”? The concession would force us to answer the normative question: Is there anything other than hostility to religion available under current jurisprudence? It would force us to determine whether we want meaningful and powerful religious symbols in public spaces, rather than defining the problem away by theorizing those symbols have little or no religious meaning.

Such an acknowledgment would force the Court to go back and tackle the real question animating these religion cases: Does the Constitution truly erect a “wall” between church and state, or is this, as most citizens maintain, a politically correct overcompensation?

Why not just read the Constitution and look at how the Founding generation treated religion in government? Given that George Washington invoked God at

Such an acknowledgment would force the Court to go back and tackle the real question animating these religion cases: Does the Constitution truly erect a “wall” between church and state, or is this, as most citizens maintain, a politically correct overcompensation?
Why not just read the Constitution and look at how the Founding generation dealt with religion when they were setting up and running the State?

Given that George Washington invoked God in his Inaugural Address, the first official utterance of the new Republic, and that the first act of the first Congress was to hire chaplains, it seems safe to say the "wall" is a figment of the Left's imagination.

Posted by Orrin Judd at December 29, 2004 8:59 AM