The generation that wrote and ratified the First Amendment obviously thought that none of these practices -- all recounted in James H. Hutson's book ``Religion and the Founding of the American Republic,'' published by the Library of Congress and based on an exhibition there -- violated the Establishment Clause. So why is today's court preoccupied with the supposed problem of mere displays of the Commandments? Because beginning about 25 years ago the court evidently decided that the Establishment Clause's historical context, and the Framers' intentions regarding it, are irrelevant.
By now the supposedly crucial question is whether to a reasonable observer a religious display on public property constitutes government ``endorsement'' of religion. So governments try to dilute the displays' religious content, as Pawtucket, R.I., did. In 1984, the Supreme Court declared Pawtucket's Christmas creche constitutional because it included a reindeer, a sleigh, Santa's house and other secular bric-a-brac.
Decades ago, the court ruled that the Establishment Clause was violated if government supplied books to religious schools but not if it supplied maps. Pat Moynihan wondered mischievously: What about atlases, which are books of maps?
Decades ago, the court ginned up a three-pronged test of permissible government contact with religion: It is permissible when the contact has a secular purpose, neither advances nor inhibits religion, and does not foster excessive entanglement with religion. This pulled the court into niggling censoriousness about common social customs -- for example, forbidding nonsectarian prayers at school graduations. The three-pronged test produced a comic moment when the court, flinching from forbidding the Nebraska Legislature to have a chaplain, implicitly said that the good cleric did not advance religion. Enough already.
Nowadays many people delight in being distressed. They cultivate exquisitely tender sensibilities and practice moral exhibitionism, waxing indignant about minor encounters with thoughts and symbols they dislike. So just to lower the decibel level of American life, perhaps communities should refrain from religious displays other than in religious contexts.
But this is a merely prudential, not a constitutional consideration. On Monday the justices churned out 140 pages of opinions and dissents about the Texas and Kentucky displays. Here is a one-sentence opinion that should suffice in such cases: ``Because the display on public grounds does not do what the Establishment Clause was written to prevent -- does not impose a state-sponsored creed or significantly advantage or disadvantage one sect or sects -- the display is constitutional.''
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