May 8, 2009

Oklahoma's Establishment Gambit

The thing that got me interested in the separation of church and state project was the apparent dichotomy between two Establishment Clause cases in 2005 -- Van Orden v. Perry and McCreary County v. ACLU. In both cases, a display of the Decalogue on government grounds was challenged as an Establishment. In Van Orden, a rather good-looking ten-foot high granite statue with the full text of the Decalogue, placed on the grounds of the Texas state capitol, was upheld as not an Establishment. In McCreary County, a somewhat dreary-looking copy of the Decalogue on a framed 8½" by 11" sheet of paper was struck down as an Establishment. In both cases, the claim was made that the display of the Decalogue was a part of exhibiting it as part of law in a broader historical and cultural tradition.

The difference in outcome was the switched vote of Stephen Breyer. Breyer did not want to be hostile to religion, believing (correctly) that the First Amendment requires that the government neither encourage nor discourage religious activity, that the government be neither hostile to, nor fostering of, the religiosity of any individual, any particular religion, or religion in general. The government should be neutral with regards to promoting or inhibiting religion. From this principle, he then made the leap to saying that the government has to be allowed to sometimes, but not always, display an injunction to worship Jehovah.

Breyer based his switch on his examination of the intent of the artists and sponsors of the respective display -- for instance, in the McCreary County display, the Declaration of Independence displayed near the Decalogue had emphasis put on the words "Creator" and "nature's God," and from this Justice Breyer inferred that the overall intent of the display was to draw attention to the role of religion rather than the role of law. But in Van Orden, Breyer was moved by the fact that the Texas monument had been erected in 1961, and no one had challenged it until very recently. The McCreary County display had been challenged almost immediately after it was put on display in 2001.

So, Breyer looked at a) artistic intent and b) longevity as indicators of whether a display of the Decalogue is an unconstitutional Establishment or a permissible display of the Decalogue as part of the historical, legal, and cultural traditions of the United States. I think Breyer is full of it. Judges are not hired to be art critics, and Breyer's analysis of these two cases demonstrates that he personally is not a very good art critic anyway. And the Constitution says what it says. Whether a practice is of long standing or recent vintage is of no moment in determining whether it violates the Constitution.

Now, those Readers who advocate only a weak degree of separation of church and state (including those who do not believe that the Constitution includes any such concept, because it does not use those literal words) need to understand that I completely agree that the Decalogue is indeed a part of our historical, legal, and cultural traditions. But I can imagine no instance of its display by any organ of the government at any level -- including on the pediment of the Supreme Court of the United States -- that does not convey a governmental endorsement. This is inherently a promotion of the Decalogue and therefore a promotion of religion, and not a neutral display.

I also reject categorically the concept of "ceremonial deism." This is the idea that certain actions that invoke or refer to religion have, through rote repetition, lost all religious significance. Things like the phrase "In God We Trust" as the national motto and emblazoned on currency, the 1954 addition of the phrase "under God" in the Pledge of Allegiance, and the invocations used to open legislative sessions, have all been identified as "ceremonial deism." But if these are things that lack religious significance, then removing them ought not to be hostile to religion. And even the suggestion that we do such a thing draws howls of protest from religious people. The simple fact that they care indicates that there is, indeed, religious significance to these things.

So this morning I'm intrigued, although not really pleased, to see a story about the Oklahoma legislature pass a law in which it will attempt to replicate, as exactly as possible, the Decalogue monument that passed Constitutional muster in Van Orden. Just as in Texas, only private funds will be used to create and place the monument, which will be donated to the state, and the display will go amongst several other monuments. This will highlight one part of Justice Breyer's differential analysis, which was based on the longevity of the display. The Oklahoma display will be brand new, and therefore under Breyer's analysis, more subject to attack despite being functionally identical. I completely agree that this is just plain silly, and silliness of this nature has no place in our Constitutional jurisprudence.

But, there is still the issue of artistic intent -- the intent here is pretty obviously an intent to display the Decalogue for its own sake. It's an intent to promote the Decalogue itself. And I'm earnestly trying to be fair when I say that I cannot conceive of a way for Oklahoma to do this without intending to promote and endorse the Decalogue itself. This appears to fail Breyer's "artistic intent" analysis, and if I'm right, that means that the content of the display is also irrelevant. Which is also deeply silly.

Of course, the real problem is that certain politicians feel the need to push the limits here in the first place. They cannot content themselves to leave well enough alone. I suppose on one level, that's good for me, a man who intends to write a book about this. There will be no shortage of fresh material for my project. But what, if not a desire to promote religion, could possibly motivate this seemingly irresistible impulse of certain politicians (who seem to always be deeply religious individuals) to authorize, commission, and place on government property very large, heavy, imposing, and difficult-to-relocate religiously explicit monuments? Of course they're trying to promote religion.

Look at it the other way. If Oklahoma didn't put up the monument, would that be an Establishment of secularism as Oklahoma's official religion? Of course not. The state would simply be silent on the issue (as it should be). The government's failure to take an action which promotes religion is not the same thing as the government doing something which inhibits religion. Strict neutrality requires that the government do neither of those things.

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