Jewish World Review June 30, 2005 / 23 Sivan
The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrates, as equally useful.
"Decline and Fall of the Roman Empire"
Thumb through the pages and pages of legal opinion produced by the latest couple of church-state cases decided by the Supreme Court of the United States, and you can almost hear the deafening din of concurring and dissenting opinions.
Each of the justices seems to have at least one opinion, and sometimes more, which explains why they may dissent or concur only in part with one another. The chief justice, confronted by this sheaf of opinions, could only say: "I didn't know we had that many people on our court."
Forget that business about the still small voice. Religion, at least when it becomes entangled with law, inspires not silent devotion but loud and loquacious contention.
Church-state law in this country long ago became a kind of game that demeans both.
It is one thing to admire the perfectly balanced words of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. …"
It is another to apply those fine words to the inevitable religious displays and facsimiles thereof that are bound to be crop up in a free, not to say rambunctious, country.
Over the years, in decision after decision, the court has laid down the basic rule of this game:
In order for a religious display to be legal, it can't be too religious.
The display may be educational; it may be respectful; it may be historical; it may be useful; it may be an example of the culture in general rather than any religion in particular; it may be any number of things, but it must not be a sincere expression of a distinctive religious faith on the part of government. Since that would come too close to an establishment of religion.
So if the sacred symbol can be sufficiently profaned by the addition of various secular motifs, it's constitutionally kosher.
Think of one of those Christmas displays in which a manger scene us squeezed in between Santa-plus-elves-and-reindeer, candy canes, snowmen, an American flag and maybe a plug for the state university's football team.
The essential question before the Supreme Court in such cases is not whether such exhibitions are tasteful, but only whether they are legal. Despite the volumes of words used to express and apply it, the legal theory is simple enough: Add enough other stuff and the holy isn't holy any more, and so may be displayed under public auspices.
Consider, if you can bear to, that huge monolith on the grounds of the Texas state Capitol engraved with a facsimile of the Ten Commandments, two Stars of David, an American eagle, the eye-in-the-pyramid you'll also find on every dollar bill, and the name of the donor in the quasi-tasteful style favored by patrons of public radio ("Presented to the People and Youth of Texas by the Fraternal Order of Eagles"). And maybe another extraneous symbol or two, not counting various floral flourishes.
What were the justices to make of this thing? Was this whole agglomeration constitutional or unconstitutional, what say ye?
The monument is strictly educational, argued the attorney general of Texas, not religious. To cinch his case, he noted that it appeared along with 17 other and quite different graven images on the Capitol grounds, ranging from tributes to pioneer women, Confederate soldiers and Texas Rangers to a replica of the Statue of Liberty.
Think of this version of the Ten Commandments as being like those holy relics of Americans Indians one might find on display in a roadside museum for the edification of passing tourists. Such an exhibit is for ornamental/commercial/educational purposes only, not worship. Ergo, it's constitutional. That's the general line of reasoning Texas' attorney general used to justify this exhibit on the Capitol grounds.
Immediately after the Supreme Court bought his argument 5 to 4 the attorney general held a press conference on the Capitol grounds to gloat. Surely no one would confuse so political a performance with anything holy, either. The process of desacralization was complete.
As for the other case, which involved a version of the Ten Commandments displayed in a Kentucky courtroom, it did not pass constitutional muster again 5 to 4.
In large part because the other stuff tacked on later was all too clearly an attempt to disguise the religious impulse that prompted the original display. For the court insists that this game be played honestly. The secular accessories had to be part of the original display, not too obvious a cover, in order to be constitutional.
What all this has to do with religion is very little. It has everything to do with legal gamesmanship. Which is what happens every time the almighty State lays its hands on the holy.
By the time government is finished diluting religious symbolism for its own purposes, as when it surrounds the Ten Commandments with cowboy heroics and folk art, the profanation is complete and completely constitutional. And we all wind up arguing, rather than reverencing their Author.
The whole spirit of this dubious enterprise at law, sometimes referred to as civil religion, was ably summed up by Chief Justice William Rehnquist, may he live long and be well, in his opinions upholding such displays because they used only "passive texts." It's not as if the state of Texas actually believed all this stuff, you see, let alone actively practiced it. These copies of the Ten Commandments are for display purposes only. One mustn't confuse appearance with essence. It's all for show only an outward display of piety.
Nor should these displays be mistaken for an establishment of religion; they are more an establishment of cynicism. Once again the magistrates are finding religion only useful. Welcome to ancient Rome. You'll find a walk through the ruins instructive.
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