The purpose of Our Conscience weblog is to facilitate a greater discussion and understanding of church and state separation in our community and in others. Underlying this is the value that each individual should be allowed to follow the dictates of his or her own conscience without influence, coercion, or direction from the State when it comes to matters of religion.

Wednesday, December 01, 2004

Establishing Jurisprudence: The high court should stop its disingenuous sidestep of the church-state debate

Our Conscience

Dicta: Establishing Jurisprudence
The high court should stop its disingenuous sidestep of the church-state debate.

By Dahlia Lithwick
The American Lawyer
December 1, 2004

The U.S. Supreme Court recently agreed to hear a pair of cases testing the constitutionality of displays of the Ten Commandments on government property. The Court finally agreed to reconcile conflicting lower rulings-concerning the display of a six-foot monument on the grounds of the Texas State Capitol in one case, and another involving framed copies of the commandments on Kentucky courthouse walls. The two cases have legitimate differences: The Texas display is part of a collection, the Kentucky "collection" sprung up to protect the display. The Texas monument is in a "museum-like" setting. The Kentucky display is on a court wall. The Texas Commandments monument was a gift, and has stood uncontested for decades. But underlying all the details is a profound problem: a tendency to disregard the religious in our religion cases.

Having avoided this issue for decades, the Court must now reexamine the carnage left in the wake of its batty establishment clause jurisprudence-a line of cases effectively holding that it's okay for the state to erect Christmas crèches and such on public property, so long as the ratio of Santas to Sponge Bobs in the manger is roughly equivalent. As a result of this lack of guidance, lower courts have been forced to take the religious display cases to mean it's fine to display the Decalogue, so long as it's lost in a clutch of other "historical" documents. Copies of the Magna Carta, the Declaration of Independence, Christopher Columbus's traveler's checks-all this stuff somehow immunizes a religious display from endorsing or advancing religion; perhaps because all that clutter endorses and advances only headaches.

As a result of this line of inquiry, courts across the land have upheld religious displays using what Justice Anthony Kennedy once dubbed "the jurisprudence of minutiae"-the theory that public land becomes more like a "museum" if you've amassed enough tchotchkes for God. This constitutional compromise only ensures both sides will be offended: Atheists are still affronted that the state is promoting any religious symbols, believers are annoyed that cherished icons are awash in a sea of knickknacks.

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