Religious Establishments

By Russell Shaw
Herald Columnist
(From the issue of 3/3/05)

Here's an easy question for the constitutional lawyers out there: What is an "establishment of religion" anyway?

One school of thought holds that when the nation's founders in the First Amendment forbade Congress to legislate an establishment of religion, they were simply ruling out a government-backed national church like the Anglican Church.

As a matter of fact, that's correct. But in the two centuries since then, the understanding of religious "establishment" has grown and spread to include far more than just a home-grown version of the Church of England.

Someone might argue for turning back the clock on this troublesome question in order to recapture the founders' original intent. But that isn't likely to happen. Instead, our only real option now seems to lie in making sense out of the confused gaggle of Supreme Court decisions over the years interpreting and applying the no-establishment clause.

Currently the high court is at it again. During March, the justices will hear oral arguments in three more cases, which, among them, have the potential to make a significant addition — for better or worse — to the already large body of establishment clause jurisprudence.

Two of these cases already have drawn a great deal of media and public attention because they deal with a neuralgic issue: Is there a constitutionally acceptable way of displaying the Ten Commandments on public property?

In one case, what's involved is a 6-by-3.5-foot granite monument situated on the grounds of the Texas state capitol. In the other, from Kentucky, its framed copies of the Decalogue hung in courthouses and schools. It is possible that the key issues for the Supreme Court in these two cases will turn out to be the context in which the Commandments are displayed.

In the Texas case, the 22-acre state capitol grounds contain monuments and memorials to a variety of events and causes besides those of a religious nature. It therefore can be argued that the context is a permissible state-sponsored historical exhibit rather than a supposedly impermissible state-sponsored religious display.

In Kentucky, by contrast, the Ten Commandments hung alone in courthouses and schools when the legal challenge began. Since then the state has been careful to add other documents to such displays. But the court might reason that singling out the Commandments, as was the practice at first, violated the no-establishment rule.

The issue in the third case, from Ohio, is the right of prison inmates to hold worship services and otherwise practice their religious beliefs under a federal law called the Religious Land Use and Institutionalized Persons Act. Prison authorities argued that prison security required banning that.

The fact that the religions involved are Asatru, Wicca, Satanism and the "Church of Jesus Christ Christian" lends a touch of color to this dispute. But the constitutional issue isn't the merit of offbeat sects. It is whether the provisions of the statute intended to accommodate religious practice violate the establishment clause by unduly favoring religion.

Reasonable people might wonder whether, in barring a government-sponsored church, the founders really sought to exclude the Ten Commandments from courthouse walls or keep prisoners from practicing odd religions in the absence of a clear and present threat to prison security. The founders might wonder that, too.

But this is the point we've reached thanks to the secularizing thrust of Supreme Court decisions extending back many years that place virtually any friendly interaction between religion and the public sphere under a heavy cloud of constitutional suspicion. One can only hope the court will do better this time.

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