The First Amendment contains two religion clauses. The first clause prohibits the government from enacting laws “respecting an establishment of religion.” The second forbids the government from interfering with the “the free exercise” of religion. “
In 1802, then-president Thomas Jefferson wrote a letter to the Danbury Baptist Association expressing his belief that religion “is a matter which lies solely between Man & his God,” and that the purpose of the Establishment Clause was to build “a wall of separation between Church and State.” In other words, government is one thing, religion is another,
The Supreme Court has quoted Jefferson’s letter many times, notably in Everson v. Board of Education, a 1947 case dealing with whether the “wall” permitted a state to provide student transportation to parochial schools. That Court held that it did.
In the years since the Everson case, the Court has issued many decisions dealing with the Religion Clauses. The best anyone can say about them is that they are hopelessly confusing, one saying one thing while another seems to say the opposite. Two notable examples dealing with the Establishment Clause are cases decided on the same day in 2005. In McCreary County v. American Civil Liberties Union, the Court ruled that displaying framed copies of the Ten Commandments in Kentucky courthouses violated the Establishment Clause. In the same breath, in Van Orden v. Perry, the Court decided that a Ten Commandments monument could remain in an Austin, Texas public park.
New Hampshire’s Justice Souter wrote the majority opinion in the McCreary County case He simply didn’t buy the theory that the Ten Commandments could be secular in one public place and religious in another, or that the age of the monument (the one in Texas had stood unchallenged for 40 years) was a significant Establishment Clause factor. As he explained, the “principle of neutrality” means that government “may not favor one religion over another or religion over irreligion.” He added a comment, as relevant today as it was in 2005, that the Framers of the Constitution knew from experience that nothing roils society and creates civic divisiveness more than “when the Government weighs in on one side of religious debate.”
True to his Establishment Clause convictions, Justice Souter dissented in Van Orden. Justice Breyer, on the other hand, somehow managed to vote with the majority in both of these 5-4 decisions.
The Court’s most recent Establishment Clause ruling is a 2019 case called American Legion v. American Humanist Association. The case deals with the 40-foot high “Bladensburg Cross,” a World War I memorial that has stood on public property in Prince George’s County, Maryland since 1925. According to Justice Alito’s majority opinion, this cross may have been religious when it was dedicated but, by reason of the passage of time, it “has also taken on a secular meaning.” It seems like this “aging doctrine” (my term), which Justice Souter rejected in 2005, has now become an Establishment Clause principle.
In her dissent, Justice Ginsberg points out that for nearly 2000 years, the Latin cross has been the “defining symbol” of Christianity. Taking an “originalist” approach, she notes that at its 1925 dedication, the keynote speaker compared the sacrifice of the honored soldiers to that of Jesus Christ.
Just as Justice Souter refused to adopt a constitutionally two-sided view of the Ten Commandments, so Justice Ginsburg could not fathom how a well-understood religious symbol could somehow become secular. Justice Alito did not tell us how long it takes for this transition to happen. And I wonder whether this kind of metamorphosis is unique to the Cross, or does it also apply to the Star of David (Judaism), the Wheel of Dharma (Buddhism), and the Star and Crescent (Islam)?
With last year’s addition of Justice Amy Coney Barrett, the Court now has six “conservative” Justices, at least four of whom call themselves “originalists.” I have come to believe that “originalism” is often more a rationale for reaching a particular result than it is a consistent principle of constitutional interpretation. The First Amendment word “Establishment” is anything but clear, but the Framers intended to establish a separation between church and state. That “originalist” perspective is what Jefferson expressed in his letter.
In a speech last November to the Federalist Society, Justice Alito said he is worried that religious liberty “is fast becoming a disfavored right.” He was referring to the Free Expression clause, but clearly he is referring to the Establishment Clause as well. The “tell” is something he added, almost as an aside, in his Bladensburg Cross opinion—that for the Court to order the cross removed could be perceived as hostility to religion. Another way to look at it would be to say that such an order would represent adherence to the Constitution.
If the Court continues down its present path, Jefferson’s wall will shrink to the point where it barely casts a shadow.