Ten Commandments Cases -- When is a Win a Win?
Stephen M. Crampton, Esq.
America is watching as the Supreme Court prepares to rule in two Ten
Commandments display cases in the next few weeks.
Many expect they will allow at least one of the displays to remain,
including even the self-described "religious pluralist" Thomas Van Orden,
the plaintiff in one of the cases. But
prudence as well as history counsel that we be cautious, especially in matters
so near the epicenter of the culture war.
Will a ruling permitting the displays to remain necessarily signal a
bright future? Or could it be that
even a "win" in these cases may presage clouds on the horizon?
I would suggest that we must examine not only what
the Court decides, but how it does so.
Supreme Court opinions run from long to very long, especially in
Establishment Clause cases. In the
recent Pledge of Allegiance case, for example, the Court took twenty-eight pages
just to say that atheist Michael Newdow was the wrong party to sue. Imagine how long the opinion would have been had they
actually reached the merits.
The primary consideration for the Supreme Court is not the narrow
question presented by the parties, but what rules will govern for years to come.
Accordingly, while the named party in a case may prevail under the facts
and circumstances presented, the decision may be crafted so as to rule out any
possibility of anyone else ever prevailing with a similar claim.
A win for one litigant may prove a loss for all others.
Consider, for instance, the case of Marsh
v. Chambers. Decided in 1983,
the Supreme Court upheld the Nebraska state legislature's century-old practice
of opening each session with a prayer by a chaplain paid with public funds.
Most conservatives rightly hailed this decision as a win.
In retrospect, however, Marsh
has been carefully limited to its facts, and few cases since have successfully
employed the Marsh analysis.
In effect, the courts have declared that Nebraska's situation was
unique; no other government bodies need apply.
Significantly, Marsh was the
only case between the 1971 Lemon v.
Kurtzman decision and the 1992 Lee v.
Weisman graduation prayer case which failed to employ the analytical
framework adopted in Lemon, which has
laid waste to the public practice of religion.
The Lemon test invites a court
to immerse itself in factual minutiae. It
removes any pretense of a bright-line rule of law, and leaves the courts as the
final arbiters of social policy. Justice
Scalia has famously observed that "like some ghoul in a late-night horror
movie that repeatedly sits up in its grave and shuffles abroad after being
repeatedly killed and buried, Lemon
stalks our Establishment Clause jurisprudence."
The bitterness of Lemon has
rotted our religious freedom.
The good news is the Supreme Court has finally invited argument on
replacing the Lemon test. The bad news is that its replacement may make the pale yellow
of Lemon look like gold by comparison.
The cure may be worse than the disease.
Because the current Court is ideologically fractured, the outcome of the
Ten Commandments cases will likely turn on the opinion of one or two Justices,
the so-called "swing votes." Justice
Sandra Day O'Connor is one of those. She
previously developed "the endorsement test," which, in the crèche cases,
has been dubbed "the reindeer rule:" A
Nativity scene on public property is constitutional only when it includes enough
plastic reindeer, Santas, and snowmen.
Justice O'Connor's latest alternative to Lemon
presents a dangerous pitfall to be avoided.
The "ceremonial deism" test would excuse public references to God --
so long as no one actually believed in Him.
It would uphold some public religious acknowledgments, such as the
national motto, if they are old enough and essentially devoid of any real
religious sentiment. That is, it would allow religious practices provided they
were no longer religious, but merely "ceremonial."
Like an ancient Indian war dance, a brief reference to God in a patriotic
song could remain, but only as an historical curiosity.
Fervent prayers, however, such as those offered at the National Day of
Prayer events, would be strictly forbidden, as would all other truly religious
As bad as Lemon has been, we
should carefully examine any court-ordered replacement. Otherwise, a modest win
in the short-term Ten Commandments battle could in fact become a major defeat in
the long-term culture war. Now is
not the time for the watchman on the wall to fall asleep.
Mr. Crampton, who authored a
friend-of-the-Court brief in the Ten Commandments cases, serves as Chief Counsel
of the American Family Association Center for Law & Policy (CLP), a public
interest-type law firm defending the constitutional rights of Christians.
The CLP's web site is www.afa.net/clp. Mr. Crampton's daily
radio show, "We Hold These Truths," can be heard on almost 200 radio
stations nationwide. He can be
reached at firstname.lastname@example.org.
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