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Jewish World Review June 21, 2001 / 30 Sivan, 5761

Paul Greenberg

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They just don't get it -- THE majesty of the law, like all majesties on close inspection, can be something less than majestic. Note the peevish opinions of justices of the Supreme Court of the United States when they start hurling dissents at each other -- the way little boys do spitballs.

This time there wasn't even a clear decision to dissent from. A majority of the court simply decided it wouldn't hear a case involving this momentous question:

Does a stone monument, circa 1958, displaying the Ten Commandments outside a municipal building in Elkhart, Ind., violate anything besides good taste, namely the First Amendment's ban on an establishment of religion?

Fortunately, the court decided to pass. Unfortunately, some of the justices didn't. They couldn't resist exchanging what they doubtless thought were Great Insights.

In one corner, in black robes with those silly stripes he wore for the impeachment trial, was Chief Justice William H. Rehnquist. Joined by his loyal seconds, Antonin Scalia and Clarence Thomas, the chief justice wanted to hear this case out of Elkhart.

A lower court had ruled that displaying the Ten Commandments in such a setting crossed the line between church and state, but the chief justice disagreed. This religious display wasn't just a religious display, he explained. It was also a monument to the cultural, historical and legal significance of the Ten Commandments.

There was something familiar about the chief justice's reasoning, but it took me a moment to think of just where I'd heard it put like that before.

Then it came to me. Of course. I went back and dug up the old clip. It was a quotation from the late Bill McCuen, who at the time was still unconvicted. He was still Arkansas' own secretary of state and, by virtue of that illustrious office, got to decorate the state Capitol every Christmas. And he was defending the nativity scene that used to be part of the show. It was really, you see, a secular exhibit. "The Arkansas display,'' he explained, "incorporates the theme of Christmas and not just the Nativity of Christ.''

Chief Justice Rehnquist would have understood. The state, you see, wasn't celebrating a religious holiday but only recognizing the cultural, legal and historical significance of Christmas, which by now may have only a coincidental connection with the birth of Christ. (Just ask the Japanese, who celebrate it enthusiastically without asking questions about its origin; they just like all those gifts. And sales.)

And if Christmas can be secularized, why not the Ten Commandments? The McCuen-Rehnquist Doctrine makes a kind of (awful) sense when you think about it, and, sadly, we have to think about it regularly -- as one religious symbol after another becomes government property. Literally. On courthouse grounds. In public parks. And so secularly on.

The secularization of sacred symbols proceeds apace, all in the name of respecting them.

It was bound to happen. Government, always in need of validation, can't resist the temptation to bolster its image with the symbols of faith. It just can't keep its hands off the holy.

Only later may some wonder why the old words and images no longer seem to have the same power, or even meaning, now that the state has expropriated them for its own purposes.

Years ago, an Arkansas politician -- John Brown III, then president of John Brown University in Siloam Springs -- wrote an essay defending the state's use of religious symbols. His article was a kind of defense of God on the grounds of social utility. As he put it: "It is a sad commentary that, in a nation beset by crime, crack and crying children, some federal courts should find mere symbols of religious faith to be offensive to the public good.''

Exactly. Let the state start borrowing symbols from religion, and soon enough they will indeed become mere symbols. They will have been hollowed out. The state will have manipulated them for the greater glory of ... the state. God will have been enlisted as a kind of ultimate social worker in the fight against crime, crack, crying children, urban sprawl or whatever social ill leads the list at the moment.

No, government would not be practicing religion -- goodness, that would be unconstitutional -- but just using it. Which is worse.

There is a word for using the holy for secular ends: profanation.

Of course the profanation is unconscious; the Rehnquists know not what they do. They may think they're actually honoring God by adding His Word to their approved list of cultural, historical and legal values. But that makes it even more of an abomination. Because it is so unthinking.

The chief justice's solicitude for the Ten Commandments as an historical artifact brings to mind the Roman emperor and god who, attempting to pacify his rebellious subjects in Judaea, kindly offered to add a statue of the Jews' mysterious Deity to all the others in the Pantheon. He was astonished when his kind offer only further enraged them. He meant well, but he just didn't get it. Like these honorable justices of the Supreme Court.

In a free society, there will never be a clear distinction between the expression of religious and civil values; they overlap. We can't and shouldn't ghettoize religion, and ban it from the public square.

But neither do we want to fill the public square with all kinds of religious bric-a-brac, from gold-plated Buddhas to Christs-of-the-Ozarks to electrified menorahs, all erected and blessed by the state, with space reserved for other multicultural icons as they come into fashion with our changing demographics.

When it comes to the First Amendment, which both guarantees freedom of religion and bars the state from establishing one, some constitutional calls are indeed close. But the state ought to have a decent respect for the words and symbols of religious faith, even a reverence, and keep a respectful distance. It should not be using the sacred as a tool, or as a nice decoration for public buildings.

Those who would mix church and state erode the integrity of both. Some governments covet only their citizens' property. The worst set out to expropriate their faith.

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