churches and the State

churches and the State

We are about to engage in some very good discussions on the first amendment and religion, and we'll do it in spurts frequently. The first, and for which this serves as an introduction, will address the recent arguments before the Court concerning two Ten Commandment displays on government property. I anticipate some worthwhile and valuable exchanges. First, though, I begin with a confession.

Through my disgust with the state of popular political rhetoric, I've come to see a source of the problem; to wit, our refusal to address and disclose our motives and underlying predispositions. This leads to some, I would say, evil arguments. Evil, because they deceptively center the debate on false parameters and relay false earnest-ness on factors toward which we ought to find greater flexibility. More troubling, such rhetoric fails to allow the audience to achieve real understanding of the person's position. Instead of finding why we think something, and seeking some reasonable place for insight, we lock ourselves into debates that become little more than talking points and rubbish.

Thus, my confession: I do not think the Ten Commandments, should be displayed anywhere that a reasonable person could perceive the government has so placed. This is not a conclusion derived from the posture of this case, nor from legal precedent. Rather, it is my belief--formed from my fundamental notions of what the first amendment means, and the way our Nation should be. In other words, my gut reaction to the recently argued cases is that state governments, by placing these monuments where they did, are attempting to make a very important religious choice for the governed, and such action is wrong--legally and morally.

As for legal reasoning, the displays violate the establishment clause (barring Congress from establishing religion, and applicable to state and local government action as well). In my mind, this is a violation across the various Constitutional interpretive approaches, except strict constructionalist. But I will save addressing each approach for the progress of this discussion.

As far as I can tell, my own approach is a mixture. The history major in me joins Scalia in his originalist approach, and so I take account of the framers' choice of "religion" rather than "a religion." The latter phrase would suggest that the establishment clause precludes a national church. I think the choice of the broader "religion" means just what it says...Congress shan't establish religion through its laws. I also acknowledge, through my history studies, the fallibility of our understanding just what these people, so disconnected from us, were thinking and intending. I would take any conclusions with a grain of salt.

I also agree with those jurists that give due weight to precedent. Just as a piece of art is, in the end, defined both by its maker and the perception of its audience, so too is the Constitution. Its treatment and interpretation by the Court over many years is part of what it is. Thus, it is not a waste of time to evoke the various tests that the Court has used--coercion, endorsement, et cetera. Under all those tests, I think the displays fail.

Finally, I incorporate, in my Constitutional decision making, some degree of feeling--what I think the Constitution should be, and what it should be read to say. The heart of the first amendment is its attempt to structure a Nation that gives its citizens a space to find what is real and true. What purpose, I wonder, do the words making up the establishment clause carry if various levels of government can direct our contemplation of truth? The Ten Commandment displays do just that.