Reflections on the Ten Commandments case

Stuart Taylor is a centrist commentator on legal issues. He also happens to be both bright and intellectually honest. His latest piece takes the position that courts have “gone too far in purging religion from the square.” Taylor finds in some of the jurisprudence on these matters an “indifference, or even hostility, to the interests of religious believers in maintaining innocuous ceremonial traditions that have long been sponsored by governments.” And he urges the Supreme Court to reverse two decisions that exemplify this tendency — the decision requiring the phrase “under God” to be excised from the Pledge of Allegiance and the decision barring the Virginia Military Institute from having a brief, nondenominational prayer read by a chaplain to students before supper every evening. In addition, Taylor urges the Supreme Court to scrap its “three-part test” for deciding Establishment Clause cases. In its place, Taylor proposes a commonsense distinction between governmental bows to religion that are nonsectarian, rooted in tradition, and impose no real burden on dissenters, on the one hand, and religious exercises that are unconstitutionally coercive, sectarian, or discriminatory, on the other.
Taylor, however, sides with the decision requiring the removal of the Ten Commandments from the Alabama courthouse. In Taylor’s view, unobtrusvie displays of the Commandments in conjunction with secular symbols of law are constitutional, but Chief Justice Moore’s “in-your-face, grandiose, stand-alone” display is not.
I usually get uncomfortable when cases turn on these sorts of distinctions. Judge’s views about how prominent the display can be, what else (if anything) needs to appear with it, and what the dsiplayer had in mind are part of what has given establishment clause jurisprudence a bad name, in my unschooled opinion. However, after reading the Fifth Circuit Court of Appeals’ opinion in the case, I am more sympathetic to Taylor’s view and that of the Fifth Circuit. Judge Carnes (a solidly conservative jurist) relies on Chief Justice Moore’s testimony that his purpose in installing the monument was to acknowedge the law and sovereignty of the God of the Holy Scriptures and to remind all who enter the building that “we must invoke the favor and guidance of Almighty God.” I have to wonder whether, in using public buildings for these purposes, the state didn’t go beyond what the Constitution permits.

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