mccreary county v american civil liberties union and supreme court and souter and scalia and monotheism

On June 27 the US Supreme Court handed down two 5-4 decisions concerning the permissibility of a display of the Ten Commandments on public property (summary of facts of McCreary is here). In this case the Court held that a display of the Commandments in the context of other historical documents in a prominent place in the county courthouse violated the Establishment Clause of the First Amendment. The focus of this essay will be on the different modes of argument of the majority opinion (written by Justice Souter) and the dissent (Justice Scalia). This is not just an academic exercies, however. The points made by Scalia, for example, evince a growing militant stance of those who believe that the America has been far too hostile to expressions of religion in the public sphere in the last generation or so. Hence, after a brief summary of Souter's position, most of my attention will be on Scalia's rejoinder.

Souter's Point

Souter argues historically and emphasizes the manner in which the display 'evolved.' That is, at first (1999) the county put up only a display of the King James Version of the 10 Commandments from Exodus 20. Then, after the ACLU brought suit for an injunction, the county immediately put the Commandments alongside several other documents (in smaller frames) with their religious content highlighted. Finally, later still, the county put several documents side by side in similar-sized frames with the caption "The Foundations of American Law and Government Display." Though Souter made the obligatory points from the S Ct's jurisprudence that government must be neutal toward religion and not favor religion over irreligion, he clearly felt that the hasty attempts to revise the exhibits (as well as the language of the resolutions authorizing them) bespoke an awareness that the primary purpose of the exhibits was to promote religion.

As such, it violated the first prong of the widely-criticized but never-overruled Lemon test from the early 1970s. Souter also emphasized that as one studies the history of the Founding Fathers' attitudes toward religous observance even in the light of separation of church and state, "there was no common understanding about the limits of the establishment prohibition"....and that they "proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined." An evolving document. Thus, Souter rests his historical argument on indeterminacy or, even better, conflicting statments from the Founding Fathers, while arguing that the conduct of the county certainly ran afoul of the Lemon test.

Scalia Responds

Justice Antonin Scalia makes two major points in dissent, but these points need to be understood in the context of his rather ahistorical mode of argument. He does refer to historical figures and documents--don't get me wrong--but he does so only to extract a clear-line principle from them and not to understand the possible tension between primary sources or even within the individuals whom he quotes. That is, history, for Scalia, is only important as a place to get ammunition but that ammunition is only effective if it gives a clear and "principled" (to use his overused term) approach to an issue. He sees the following two principles that are relevant to the case:

(1) The Fathers didn't understand and wouldn't support the notion that the Establishment Clause is neutral with respect to religion. Souter, relying on the Court's jurisprudence since Everson in 1947, argued that the Establishment Clause meant that government must be neutral towards religion and that therefore government may neither favor one religious group over another but even religion over irreligion. Scalia fights both ends of this conclusion with every literary and rhetorical means at his disposal. Government ought not to be "neutral" towards religion; indeed, the granting of privileges to churches (non taxation of property) and the funding of legislative chaplains proves, for Scalia, that government never was "neutral" towards religion. Our culture presupposes support for religion from government.

(2) But Scalia goes one step further in his argument, advancing a point that Souter called a "truly remarkable view." This view was that even if the 10 Commandments endorsed a belief in monotheism ("I am the Lord your God...you shall have no other Gods before me.."), this affirmation did not mean that government was establishing religion. It means that government supports monotheism, which is different than establishing a religion. It means that the Establishment Clause permits "disregard of polytheists and believers of unconcerned deities, just as it permits the disregard of devout atheists." Since allegedly 97% of people who profess a belief in religion in the United States are monotheists, Scalia concludes that this overwhelming majority ought to be affirmed in their beliefs. A confession of monotheism, then, doesn't establish a religion for him. I would assume that this militant and quite controversial statement--that a confession of monotheism doesn't establish a religion--will reappear in future cases, especially if the Flag Salute case makes it back to the Court.

Conclusion

The "winners" in this case (the ACLU), have reason to believe that their victory is not a very solid one. Once the conservative bloc has the opportunity, they will try to overturn the three-pronged Lemon test and then dismiss as dicta the affirmation since Everson that neutrality ought to be the posture of the government towards religion. Though "in context" displays are constitutional now, the religious right, and a very large minority of the Court might soon with an additional justice affirm an outright "monotheistic" (though not explicitly Christian) display of religious faith. Scalia has laid some of the intellectual foundations for that approach here.

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