Indians and Swedes

By Russell Shaw
Herald Columnist
(From the issue of 11/4/04)

When told that India was the most religious country in the world and Sweden the most secularized, the eminent sociologist Peter Berger is said to have replied, "Then the United States must be a nation of Indians ruled by Swedes."

The remark wittily expresses the profound split between the religious and the non-religious in America, but it doesn't suggest the ongoing, irreconcilable conflict between the two camps. Now, disturbingly, that conflict is being fought out again on the familiar battleground of the Supreme Court.

At the start of its new term last month, the Court said that it would consider two cases involving display of the Ten Commandments on public property. One concerns a monument featuring the Commandments on the grounds of the Texas state capitol in Austin. The other focuses on the presence of the Commandments in an exhibit with other historical documents in a Kentucky courthouse. The cases will be argued some weeks from now. A decision is likely before the Court quits next summer.

Some social conservatives welcomed the prospect of a Supreme Court ruling on this disputed issue. Others weren't so sure. Although the circumstances differ, the underlying constitutional question in the Ten Commandments case appears the same as in another church-state case the Court decided earlier this year.

That dispute concerned the words "under God" in the Pledge of Allegiance recited by children in public schools. Ducking the constitutional issue, the Court held that the atheist father who challenged the practice lacked legal standing to bring the case because he did not have custody of his daughter.

A few justices — and notably Clarence Thomas — nevertheless suggested that the Court should have addressed the substantive First Amendment question: whether it is an impermissible establishment of religion for children in public schools to recite a formula that speaks reverently of God.

That same "establishment" issue, many believe, also moved the Court to accept the Ten Commandments cases. In the flag pledge controversy, Justice Thomas wanted the Court to say yes to "under God." Now, however, it is far from certain that a majority of the justices will give their blessing to the Commandments.

A common sense view of this matter suggests itself. It might reasonably be supposed that people seeing the Ten Commandments at a state capitol or in a courthouse will think of them in one of three ways — as an expression of religious faith, a symbolic statement of historical fact or a matter of complete indifference — and it is no business of government which view one, some or all such people may happen to take.

But who can be sure common sense or anything like it will prevail in these cases? The Supreme Court's track record in the church-state area is hardly reassuring.

Against this background, the announcement shortly before the election that Chief Justice William Rehnquist was being treated for cancer takes on added significance. Rehnquist already figured in speculation about who might be leaving the Court. Justices John Paul Stevens and Sandra Day O'Connor also are regarded as good bets.

John F. Kerry's pre-election pledge to nominate only supporters of legal abortion to the Court and George W. Bush's promise to name strict constructionists shed no direct light on how their respective choices would handle church-state issues. But it seems reasonable to suppose "Kerry" justices and "Bush" justices would come down on very different sides of cases involving the First Amendment. As Peter Berger might have said, it makes a big difference whether the Indians or the Swedes are in charge.

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