...Between Church and State

Perhaps no single issue better underscores the stark divisions among current members of the US Supreme Court than religion.

The two Court decisions last June over the posting of the Ten Commandments at public facilities address the Establishment Clause of the First Amendment to the US Constitution.

Under that provision, Congress is barred from enacting a law "respecting an establishment of religion." In recent years, federal courts have extended that prohibition to state and local governments as well.

In McCreary County v. American Civil Liberties Union of Kentucky, the Court considered efforts by officials of two Kentucky counties to post copies of "an abridged text of the King James version of the Ten Commandments." In a five-to-four decision, the Supreme Court held that the officials' actions violated the Establishment Clause.

While the final outcome of the case is significant, even more significant is the resulting debate. Arguing for the five-member majority is Justice Souter, who authored the opinion of the Court. Leading the minority is Justice Scalia, who penned the vigorous dissent.

The most prominent points of contention among the justices are:

Religion vs. "irreligion": The McCreary County majority interprets the Establishment Clause to require government neutrality toward religion. In the majority opinion, Justice Souter observes that as far as the Establishment Clause is concerned, "government may not favor one religion over another, or religion over irreligion . . . ."

The dissenters note the presence of the phrases "so help me God" in the Presidential oath of office, "In God We Trust" on American coinage, and "under God" in the Pledge of Allegiance, and (through Justice Scalia) ask: "With all of this reality (and much more) staring it in the face, how can the Court possibly assert that 'the First Amendment mandates governmental neutrality between . . . religion and nonreligion' . . .?"

The Framers' original intent: The McCreary County dissenters contend that the authors of the Bill of Rights never intended the government neutrality advanced by the majority. "Those who wrote the Constitution," Justice Scalia argues, "believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality."

Justice Souter is skeptical of such a view, and claims that, if the Framers' original intent is at issue, the historical evidence shows "a group of statesmen, like others before and after them, who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined."

Supreme Court precedent: The McCreary County ruling is based on a major 1971 Supreme Court decision, Lemon v. Kurtzman, which holds that governmental action whose purpose is to advance religion violates the Establishment Clause. According to the five members of the McCreary County majority, posting the Ten Commandments in the manner chosen by the Kentucky county officials was undeniably intended to advance religion.

The dissenters, however, advocate repudiating the Lemon standard, calling it a "brain-spun" test that "embodies the supposed principle of neutrality between religion and irreligion."

Despite disagreements as to what the Establishment Clause says, the Court has long deemed it applicable to agents of the state (such as state colleges and universities) and political subdivisions; many public community colleges and community college districts (including those in Arizona) are political subdivisions.

Consequently, faculty and administrators of public colleges and universities, along with other government officials, will no doubt pay close attention to future cases dealing with the separation between church and state.

Published in the Summer 2005 Edition of In Brief