The split decision

Posted: Jun 29, 2005 12:00 AM

For most of the 216 years since the Bill of Rights was adopted, the First Amendment's prohibition against government establishment of religion has been easily understood by judges and ordinary Americans alike. Everyone recognized the First Amendment's establishment clause proscribed Congress from setting up an official state religion -- like the Church of England in Great Britain or Shia Islam in the Islamic Republic of Iran, for example. Nonetheless, for much of our nation's history, most Americans, including most federal judges, presumed that the First Amendment did not absolutely prohibit all governmental acknowledgment of religion's role in the lives of the people -- and for good reason. Neither the wording of the amendment itself nor common practice challenged the widely held belief that government guaranteed freedom of religion, not freedom from religion.
From George Washington to George W. Bush, presidents have invoked God's name in the performance of their official duties. From the first Congress to the 109th, our elected leaders have begun their day with a prayer, and for much of that time, they have appropriated government funds to hire Congressional chaplains. From Chief Justice John Marshall's term to the present, the U.S. Supreme Court has opened its session with a prayer. Our coins and currency bear the inscription "In God we trust"; witnesses testify to tell the whole truth "so help me, God"; our elected leaders swear their oaths of office with their hands on Bibles; and many of our public buildings, including the Supreme Court, are adorned with homage to our Judeo-Christian heritage. And for nearly 200 years, no one objected to these manifestations of monotheism.

 But that has changed dramatically in recent years. Now, rarely a year goes by without at least one major court challenge to one of these or similar practices. And the more the Supreme Court tries to set boundaries on what is or is not permissible under the First Amendment, the more confusing it gets. Two decisions handed down this week muddy the waters further.

 In one case, the Supreme Court decided 5-4 that displays of the Ten Commandments in two Kentucky county courthouses had violated the First Amendment's establishment clause. In the other, the Supreme Court decided that a granite monument displaying the Ten Commandments on the grounds of the Texas state Capitol did not violate the establishment clause. So confusing were the two decisions that some news outlets assumed that the differing conclusions must have something to do with the location of the displays. Some early news reports incorrectly indicated that the Decalogue was forbidden inside a government building but was OK on the grounds outside. In fact, the distinction the Court made was far murkier, relying on individual justices' interpretations of the intentions of those who placed the Ten Commandments on government property and, even, how long they had been on display. Oddly, those justices hostile to religious displays in general seemed to favor those that had been on government property a longer time.

 Justice Antonin Scalia summed up the confusion perfectly: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that -- thumbs up or thumbs down -- as their preferences dictate. Today's opinion … admits that it does not rest upon consistently applied principle … sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not."  If the majority of justices continue down this unprincipled path, they will surely need the divine intervention they invoke each session when they implore "God save the United States and this Honorable Court."