The self-styled originalists on the Supreme Court cheerfully ignore the Constitution’s original meaning when it collides with the agenda of the contemporary religious right.
The Establishment Clause is an illustration of the new phony originalism. It is now an open question whether a state could place crucifixes in classrooms.
Last year the court declared that a public school football coach had a right to say a Christian prayer on the 50-yard line after games, in the teeth of substantial evidence that he was putting his players in a position where they would feel pressured to join him. Justice Neil Gorsuch, writing for the majority, cited his own earlier concurring opinion in another case, declaring that “the use of religious symbols in public contexts” could not be a form of religious establishment.
Texas state senators cited that decision as support for a bill they passed in April, requiring the posting of the Ten Commandments in every public school classroom. The bill died because, although it passed a House committee, it was not brought to a vote before the end-of-session deadline. It will certainly be back.
Many of the Constitution’s framers worried that religion can be distorted and corrupted by state involvement. James Madison, the main author of the First Amendment’s prohibition of establishments of religion, thought that the notion that government “is a competent Judge of Religious Truth” was “an arrogant pretension,” and that the idea that religion could be “an engine of Civil policy” was “an unhallowed perversion of the means of salvation.”
The Texas proposal nicely illustrates what the framers feared. The Supreme Court held in 1980 that classrooms cannot post the Ten Commandments, which are “plainly religious in nature.” The challenged display, the court noted, instructed students in “the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day.” Any such posting must decide the fraught question of which version of the commandments is the right one. Justice John Paul Stevens noted in 2005 that “[t]here are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.”
The Texas bill tried to avoid denominational favoritism by prescribing language drafted in the 1950s by a judge who thought its display could reduce juvenile delinquency and who consulted a priest, a minister, and a rabbi. That version was then placed on monuments erected all over the U.S. by the Fraternal Order of Eagles. (That happened with the encouragement of Hollywood director Cecil B. DeMille, who was promoting his film, The Ten Commandments. Recall the framers’ concern about crass exploitation of faith.) Its wording, however, is rejected by some adherents of each of these denominations, and of course growing numbers of Americans are neither Christians nor Jews.
Justice Gorsuch argues that this relaxation of constitutional standards is appropriate because the Constitution is only violated by certain “historical hallmarks of an established religion,” such as “control over the doctrine and personnel of the established church.” Coercion to follow a specific religion “was among the foremost hallmarks of religious establishments the framers sought to prohibit.” Perhaps he thinks the noncoercive character of public displays is what distinguishes them from forbidden establishment. If that’s right, then there’s no limit to how sectarian the display can be. Nor would it matter that the audience is impressionable children.
Gorsuch quotes and relies on a 2003 article on establishment at the founding, by Stanford Law professor Michael McConnell. But McConnell’s article lists as an instance of establishment the South Carolina Constitution of 1778, which allowed only churches that conformed to certain articles of faith to be “incorporated and esteemed as a church of the established religion of this State,” but also provided that “[n]o person shall, by law, be obliged to pay towards the maintenance and support of a religious worship that he does not freely join in, or has not voluntarily engaged to support.” In South Carolina, therefore, there was an established church with state-specified articles of faith, but no financial support.
Despite the noncoercive character of this establishment, McConnell still counted it as an exercise of “the power to control articles of faith.” South Carolina abandoned its establishment in 1790.
If government gets to say what God commands, we will shortly learn that what God wants above all else is the reelection of incumbent officeholders. And the officeholders will necessarily have an instrumental and manipulative relation to the religion that they promote, thinking of God primarily as a potential political ally.
Thomas Jefferson despised “the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others.” The court isn’t assuming that kind of dominion, but it isn’t bothered by it, either. In that respect, the justices evidently think they are smarter than the Constitution.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press). Follow him on Twitter @AndrewKoppelman.