STEVENS, J., DISSENTING
VAN ORDEN V. PERRY
545 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 03-1500
THOMAS VAN ORDEN, PETITIONER
v. RICK
PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN,
STATE PRESERVATION BOARD, et al.
on writ of certiorari to the united states court of
appeals for the fifth circuit
[June 27, 2005]
Justice Stevens, with whom
Justice Ginsburg joins, dissenting.
The sole function of the monument
on the grounds of Texas’ State Capitol is to display the full text
of one version of the Ten Commandments. The monument is not a work
of art and does not refer to any event in the history of the State.
It is significant because, and only because, it communicates the
following message:
“I AM the LORD thy God.
“Thou shalt have no other gods before me.
“Thou shalt not make to thyself any graven images.
“Thou shalt not take the Name of the Lord thy God in vain.
“Remember the Sabbath day, to keep it holy.
“Honor thy father and thy mother, that thy days may be long upon
the land which the Lord thy God giveth thee.
“Thou shalt not kill.
“Thou shalt not commit adultery.
“Thou shalt not steal.
“Thou shalt not bear false witness against thy neighbor.
“Thou shalt not covet thy neighbor’s house.
“Thou shalt not covet thy neighbor’s wife, nor his manservant,
nor his maidservant, nor his cattle, nor anything that is thy
neighbor’s.” See Appendix,
infra.[
Footnote 1]
Viewed on its face, Texas’ display has no
purported connection to God’s role in the formation of Texas or the
founding of our Nation; nor does it provide the reasonable observer
with any basis to guess that it was erected to honor any individual
or organization. The message transmitted by Texas’ chosen display
is quite plain: This State endorses the divine code of the
“Judeo-Christian” God.
For those of us who learned to recite the King
James version of the text long before we understood the meaning of
some of its words, God’s Commandments may seem like wise counsel.
The question before this Court, however, is whether it is counsel
that the State of Texas may proclaim without violating the
Establishment Clause of the Constitution. If any fragment of
Jefferson’s metaphorical “wall of separation between church and
State”[
Footnote 2] is to be
preserved—if there remains any meaning to the “wholesome
‘neutrality’ of which this Court’s [Establishment Clause] cases
speak,”
School Dist. of Abington Township v.
Schempp,
374 U. S. 203, 222 (1963)—a negative
answer to that question is mandatory.
I
In my judgment, at the very
least, the Establishment Clause has created a strong presumption
against the display of religious symbols on public property. See,
e.g., County of Allegheny v.
American Civil
Liberties Union, Greater Pittsburgh Chapter,
492 U. S. 573, 650 (1989) (Stevens,
J., concurring in part and dissenting in part);
Capitol Square
Review and Advisory Bd. v.
Pinette,
515 U. S. 753, 797
(1995) (Stevens, J., dissenting). The adornment of our public
spaces with displays of religious symbols and messages undoubtedly
provides comfort, even inspiration, to many individuals who
subscribe to particular faiths. Unfortunately, the practice also
runs the risk of “offend[ing] nonmembers of the faith being
advertised as well as adherents who consider the particular
advertisement disrespectful.”
Allegheny County, 492 U. S.,
at 651 (Stevens, J., concurring in part and dissenting in
part).[
Footnote 3]
Government’s obligation to avoid
divisiveness and exclusion in the religious sphere is compelled by
the Establishment and Free Exercise Clauses, which together erect a
wall of separation between church and state.[
Footnote 4] This metaphorical wall protects
principles long recognized and often recited in this Court’s cases.
The first and most fundamental of these principles, one that a
majority of this Court today affirms, is that the Establishment
Clause demands religious neutrality—government may not exercise a
preference for one religious faith over another. See,
e.g., McCreary County v.
American Civil
Liberties Union, Ky.,
post, at 27–29.[
Footnote 5] This essential command, however,
is not merely a prohibition against the government’s
differentiation among religious sects. We have repeatedly
reaffirmed that neither a State nor the Federal Government “can
constitutionally pass laws or impose requirements which aid all
religions as against non-believers, and neither can aid those
religions based on a belief in the existence of God as against
those religions founded on different beliefs.”
Torcaso v.
Watkins,
367 U. S. 488, 495
(1961) (footnote omitted).[
Footnote
6] This principle is based on the straightforward notion that
governmental promotion of orthodoxy is not saved by the aggregation
of several orthodoxies under the State’s banner. See
Abington, 374 U. S., at 222.
Acknowledgments of this broad understanding of
the neutrality principle are legion in our cases.[
Footnote 7] Strong arguments to the contrary
have been raised from time to time, perhaps the strongest in
then-Justice Rehnquist’s scholarly dissent in
Wallace v.
Jaffree,
472 U. S. 38, 91–114 (1985).[
Footnote 8] Powerful as his argument
was, we squarely rejected it and thereby reaffirmed the principle
that the Establishment Clause requires the same respect for the
atheist as it does for the adherent of a Christian faith. As we
wrote, “the Court has unambiguously concluded that the individual
freedom of conscience protected by the First Amendment embodies the
right to select any religious faith or none at all.”
Id.,
at 52–53.
In restating this principle, I do not discount
the importance of avoiding an overly strict interpretation of the
metaphor so often used to define the reach of the Establishment
Clause. The plurality is correct to note that “religion and
religious traditions” have played a “strong role … throughout our
nation’s history.”
Ante, at 3. This Court has often
recognized “an unbroken history of official acknowledgment … of the
role of religion in American life.”
Lynch v.
Donnelly,
465
U. S. 668, 674 (1984); accord,
Edwards v.
Aguillard,
482 U. S. 578, 606–608
(1987) (Powell, J., concurring). Given this history, it is
unsurprising that a religious symbol may at times become an
important feature of a familiar landscape or a reminder of an
important event in the history of a community. The wall that
separates the church from the State does not prohibit the
government from acknowledging the religious beliefs and practices
of the American people, nor does it require governments to hide
works of art or historic memorabilia from public view just because
they also have religious significance.
This case, however, is not about historic
preservation or the mere recognition of religion. The issue is
obfuscated rather than clarified by simplistic commentary on the
various ways in which religion has played a role in American life,
see
ante, at 3–8 (plurality opinion), and by the
recitation of the many extant governmental “acknowledgments” of the
role the Ten Commandments played in our Nation’s heritage.[
Footnote 9]
Ante, at 8–9, and
n. 8. Surely, the mere compilation of religious symbols, none
of which includes the full text of the Commandments and all of
which are exhibited in different settings, has only marginal
relevance to the question presented in this case.
The monolith displayed on Texas Capitol
grounds cannot be discounted as a passive acknowledgment of
religion, nor can the State’s refusal to remove it upon objection
be explained as a simple desire to preserve a historic relic. This
Nation’s resolute commitment to neutrality with respect to religion
is flatly inconsistent with the plurality’s wholehearted validation
of an official state endorsement of the message that there is one,
and only one, God.
II
When the Ten Commandments
monument was donated to the State of Texas in 1961, it was not for
the purpose of commemorating a noteworthy event in Texas history,
signifying the Commandments’ influence on the development of
secular law, or even denoting the religious beliefs of Texans at
that time. To the contrary, the donation was only one of over a
hundred largely identical monoliths, and of over a thousand paper
replicas, distributed to state and local governments throughout the
Nation over the course of several decades. This ambitious project
was the work of the Fraternal Order of Eagles, a well-respected
benevolent organization whose good works have earned the praise of
several Presidents.[
Footnote
10]
As the story goes, the program
was initiated by the late Judge E. J. Ruegemer, a Minnesota
juvenile court judge and then-Chairman of the Eagles National
Commission on Youth Guidance. Inspired by a juvenile offender who
had never heard of the Ten Commandments, the judge approached the
Minnesota Eagles with the idea of distributing paper copies of the
Commandments to be posted in courthouses nationwide. The State’s
Aerie undertook this project and its popularity spread. When Cecil
B. DeMille, who at that time was filming the movie The Ten
Commandments, heard of the judge’s endeavor, he teamed up with the
Eagles to produce the type of granite monolith now displayed in
front of the Texas Capitol and at courthouse squares, city halls,
and public parks throughout the Nation. Granite was reportedly
chosen over DeMille’s original suggestion of bronze plaques to
better replicate the original Ten Commandments.[
Footnote 11]
The donors were motivated by a desire to
“inspire the youth” and curb juvenile delinquency by providing
children with a “code of conduct or standards by which to govern
their actions.”[
Footnote 12]
It is the Eagles’ belief that disseminating the message conveyed by
the Ten Commandments will help to persuade young men and women to
observe civilized standards of behavior, and will lead to more
productive lives. Significantly, although the Eagles’ organization
is nonsectarian, eligibility for membership is premised on a belief
in the existence of a “Supreme Being.”[
Footnote 13] As described by the Eagles
themselves:
“ ‘in searching for a youth guidance program,
[we] recognized that there can be no better, no more defined
program of Youth Guidance, and adult guidance as well, than the
laws handed down by God Himself to Moses more than 3000 years ago,
which laws have stood unchanged through the years. They are a
fundamental part of our lives, the basis of all our laws for
living, the foundation of our relationship with our Creator, with
our families and with our fellow men. All the concepts we live
by—freedom, democracy, justice, honor—are rooted in the Ten
Commandments.
.....
“ ‘The erection of these monoliths is to inspire all who
pause to view them, with a renewed respect for the law of God,
which is our greatest strength against the forces that threaten our
way of life.’ ”
Anderson v.
Salt Lake City
Corp., 348 F. Supp. 1170, 1172 (Utah 1972), rev’d, 475
F. 2d 29 (CA10 1973).
The desire to combat juvenile
delinquency by providing guidance to youths is both admirable and
unquestionably secular. But achieving that goal through biblical
teachings injects a religious purpose into an otherwise secular
endeavor. By spreading the word of God and converting heathens to
Christianity, missionaries expect to enlighten their converts,
enhance their satisfaction with life, and improve their behavior.
Similarly, by disseminating the “law of God”—directing fidelity to
God and proscribing murder, theft, and adultery—the Eagles hope
that this divine guidance will help wayward youths conform their
behavior and improve their lives. In my judgment, the significant
secular by-products that are intended consequences of religious
instruction—indeed, of the establishment of most religions—are not
the type of “secular” purposes that justify government promulgation
of sacred religious messages.
Though the State of Texas may genuinely wish
to combat juvenile delinquency, and may rightly want to honor the
Eagles for their efforts, it cannot effectuate these admirable
purposes through an explicitly religious medium. See
Bowen
v.
Kendrick,
487 U. S. 589, 639–640
(1988) (Blackmun, J., dissenting) (“It should be undeniable by now
that religious dogma may not be employed by government even to
accomplish laudable secular purposes”). The State may admonish its
citizens not to lie, cheat or steal, to honor their parents and to
respect their neighbors’ property; and it may do so by printed
words, in television commercials, or on granite monuments in front
of its public buildings. Moreover, the State may provide its
schoolchildren and adult citizens with educational materials that
explain the important role that our forebears’ faith in God played
in their decisions to select America as a refuge from religious
persecution, to declare their independence from the British Crown,
and to conceive a new Nation. See
Edwards, 482 U. S., at
606–608 (Powell, J., concurring). The message at issue in this
case, however, is fundamentally different from either a bland
admonition to observe generally accepted rules of behavior or a
general history lesson.
The reason this message stands apart is that
the Decalogue is a venerable religious text.[
Footnote 14] As we held 25 years ago, it is
beyond dispute that “[t]he Ten Commandments are undeniably a sacred
text in the Jewish and Christian faiths.”
Stone v.
Graham,
449
U. S. 39, 41 (1980)
(per curiam) (footnote omitted).
For many followers, the Commandments represent the literal word of
God as spoken to Moses and repeated to his followers after
descending from Mount Sinai. The message conveyed by the Ten
Commandments thus cannot be analogized to an appendage to a common
article of commerce (“In God we Trust”) or an incidental part of a
familiar recital (“God save the United States and this honorable
Court”). Thankfully, the plurality does not attempt to minimize the
religious significance of the Ten Commandments.
Ante, at
10 (“Of course, the Ten Commandments are religious—they were so
viewed at their inception and so remain”);
ante, at 1
(Thomas, J., concurring); see also
McCreary County v.
American Civil Liberties Union of Ky.,
post, at
19 (Scalia, J., dissenting). Attempts to secularize what is
unquestionably a sacred text defy credibility and disserve people
of faith.
The profoundly sacred message embodied by the
text inscribed on the Texas monument is emphasized by the
especially large letters that identify its author: “I AM the LORD
thy God.” See Appendix,
infra. It commands present worship
of Him and no other deity. It directs us to be guided by His
teaching in the current and future conduct of all of our affairs.
It instructs us to follow a code of divine law, some of which has
informed and been integrated into our secular legal code (“Thou
shalt not kill”), but much of which has not (“Thou shalt not make
to thyself any graven images… . Thou shalt not covet”).
Moreover, despite the Eagles’ best efforts to
choose a benign nondenominational text,[
Footnote 15] the Ten Commandments display projects not
just a religious, but an inherently sectarian message. There are
many distinctive versions of the Decalogue, ascribed to by
different religions and even different denominations within a
particular faith; to a pious and learned observer, these
differences may be of enormous religious significance.[
Footnote 16] See Lubet, The Ten
Commandments in Alabama, 15 Constitutional Commentary 471, 474–476
(Fall 1998). In choosing to display this version of the
Commandments, Texas tells the observer that the State supports this
side of the doctrinal religious debate. The reasonable observer,
after all, has no way of knowing that this text was the product of
a compromise, or that there is a rationale of any kind for the
text’s selection.[
Footnote
17]
The Establishment Clause, if nothing else,
forbids government from “specifying details upon which men and
women who believe in a benevolent, omnipotent Creator and Ruler of
the world are known to differ.”
Lee v.
Weisman,
505 U. S. 577, 641 (1992) (Scalia, J.,
dissenting). Given that the chosen text inscribed on the Ten
Commandments monument invariably places the State at the center of
a serious sectarian dispute, the display is unquestionably
unconstitutional under our case law. See
Larson v.
Valente,
456 U. S. 228, 244 (1982) (“The
clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another”).
Even if, however, the message of the monument,
despite the inscribed text, fairly could be said to represent the
belief system of all Judeo-Christians, it would still run afoul of
the Establishment Clause by prescribing a compelled code of conduct
from one God, namely a Judeo-Christian God, that is rejected by
prominent polytheistic sects, such as Hinduism, as well as
nontheistic religions, such as Buddhism.[
Footnote 18] See,
e.g., Allegheny
County, 492 U. S., at 615 (opinion of Blackmun, J.) (“The
simultaneous endorsement of Judaism and Christianity is no less
constitutionally infirm than the endorsement of Christianity
alone”). And, at the very least, the text of the Ten Commandments
impermissibly commands a preference for religion over irreligion.
See,
e.g., id., at 590 (The Establishment Clause
“guarantee[s] religious liberty and equality to the ‘infidel, the
atheist, or the adherent of a non-Christian faith such as Islam or
Judaism’ ” (quoting
Wallace, 472 U. S., at 52)). Any
of those bases, in my judgment, would be sufficient to conclude
that the message should not be proclaimed by the State of Texas on
a permanent monument at the seat of its government.
I do not doubt that some Texans, including
those elected to the Texas Legislature, may believe that the
statues displayed on the Texas Capitol grounds, including the Ten
Commandments monument, reflect the “ideals . . . that compose Texan
identity.” Tex. H. Con. Res. 38, 77th Leg. 6473 (2001). But Texas,
like our entire country, is now a much more diversified community
than it was when it became a part of the United States or even when
the monument was erected. Today there are many Texans who do not
believe in the God whose Commandments are displayed at their seat
of government. Many of them worship a different god or no god at
all. Some may believe that the account of the creation in the Book
of Genesis is less reliable than the views of men like Darwin and
Einstein. The monument is no more an expression of the views of
every true Texan than was the “Live Free or Die” motto that the
State of New Hampshire placed on its license plates in 1969 an
accurate expression of the views of every citizen of New Hampshire.
See
Wooley v.
Maynard, 430 U. S. 705
(1977).
Recognizing the diversity of religious and
secular beliefs held by Texans and by all Americans, it seems
beyond peradventure that allowing the seat of government to serve
as a stage for the propagation of an unmistakably Judeo-Christian
message of piety would have the tendency to make nonmonotheists and
nonbelievers “feel like [outsiders] in matters of faith, and
[strangers] in the political community.”
Pinette, 515 U.
S., at 799 (Stevens, J., dissenting). “[D]isplays of this kind
inevitably have a greater tendency to emphasize sincere and deeply
felt differences among individuals than to achieve an ecumenical
goal.”
Allegheny County, 492 U. S., at 651 (Stevens, J.,
concurring in part and dissenting in part).[
Footnote 19]
Even more than the display of a religious
symbol on government property, see
Pinette, 515 U. S., at
797 (Stevens, J., dissenting);
Allegheny County, 492 U.
S., at 650–651 (Stevens, J., concurring in part and dissenting in
part), displaying this sectarian text at the state capitol should
invoke a powerful presumption of invalidity. As Justice Souter’s
opinion persuasively demonstrates, the physical setting in which
the Texas monument is displayed—far from rebutting that
presumption—actually enhances the religious content of its message.
See
post, at 6–8. The monument’s permanent fixture at the
seat of Texas government is of immense significance. The fact that
a monument:
“is installed on public property implies official
recognition and reinforcement of its message. That implication is
especially strong when the sign stands in front of the seat of
government itself. The ‘reasonable observer’ of any symbol placed
unattended in front of any capitol in the world will normally
assume that the sovereign—which is not only the owner of that
parcel of real estate but also the lawgiver for the surrounding
territory—has sponsored and facilitated its message.”
Pinette, 515 U. S., at 801–802 (Stevens, J.,
dissenting).
Critical examination of the
Decalogue’s prominent display at the seat of Texas government,
rather than generic citation to the role of religion in American
life, unmistakably reveals on which side of the “slippery slope,”
ante, at 8 (Breyer, J., concurring in judgment), this
display must fall. God, as the author of its message, the Eagles,
as the donor of the monument, and the State of Texas, as its proud
owner, speak with one voice for a common purpose—to encourage
Texans to abide by the divine code of a “Judeo-Christian” God. If
this message is permissible, then the shining principle of
neutrality to which we have long adhered is nothing more than mere
shadow.
III
The plurality relies heavily on
the fact that our Republic was founded, and has been governed since
its nascence, by leaders who spoke then (and speak still) in
plainly religious rhetoric. The Chief Justice cites, for instance,
George Washington’s 1789 Thanksgiving Proclamation in support of
the proposition that the Establishment Clause does not proscribe
official recognition of God’s role in our Nation’s heritage,
ante, at 7–8.[
Footnote
20] Further, the plurality emphatically endorses the seemingly
timeless recognition that our “institutions presuppose a Supreme
Being,”
ante, at 4. Many of the submissions made to this
Court by the parties and
amici, in accord with the
plurality’s opinion, have relied on the ubiquity of references to
God throughout our history.
The speeches and rhetoric
characteristic of the founding era, however, do not answer the
question before us. I have already explained why Texas’ display of
the full text of the Ten Commandments, given the content of the
actual display and the context in which it is situated, sets this
case apart from the countless examples of benign government
recognitions of religion. But there is another crucial difference.
Our leaders, when delivering public addresses, often express their
blessings simultaneously in the service of God and their
constituents. Thus, when public officials deliver public speeches,
we recognize that their words are not exclusively a transmission
from
the government because those oratories have embedded
within them the inherently personal views of the speaker as an
individual member of the polity.[
Footnote 21] The permanent placement of a textual
religious display on state property is different in kind; it
amalgamates otherwise discordant individual views into a collective
statement of government approval. Moreover, the message never
ceases to transmit itself to objecting viewers whose only choices
are to accept the message or to ignore the offense by averting
their gaze. Cf.
Allegheny County, 492 U. S., at 664
(Kennedy, J., concurring in judgment in part and dissenting in
part);
ante, at 4 (Thomas, J., concurring). In this sense,
although Thanksgiving Day proclamations and inaugural speeches
undoubtedly seem official, in most circumstances they will not
constitute the sort of governmental endorsement of religion at
which the separation of church and state is aimed.[
Footnote 22]
The plurality’s reliance on early religious
statements and proclamations made by the Founders is also
problematic because those views were not espoused at the
Constitutional Convention in 1787[
Footnote 23] nor enshrined in the Constitution’s text.
Thus, the presentation of these religious statements as a unified
historical narrative is bound to paint a misleading picture. It
does so here. In according deference to the statements of George
Washington and John Adams, The Chief Justice and Justice Scalia,
see
ante, at 7 (plurality opinion);
McCreary
County,
post, at 3–4 (dissenting opinion), fail to
account for the acts and publicly espoused views of other
influential leaders of that time. Notably absent from their
historical snapshot is the fact that Thomas Jefferson refused to
issue the Thanksgiving proclamations that Washington had so readily
embraced based on the argument that to do so would violate the
Establishment Clause.[
Footnote
24] The Chief Justice and Justice Scalia disregard the
substantial debates that took place regarding the constitutionality
of the early proclamations and acts they cite, see,
e.g.,
Letter from James Madison to Edward Livingston (July 10, 1822), in
5 The Founders’ Constitution 105–106 (P. Kurland & R. Lerner
eds. 1987) (hereinafter Founders’ Constitution) (arguing that
Congress’ appointment of Chaplains to be paid from the National
Treasury was “not with my approbation” and was a “deviation” from
the principle of “immunity of Religion from civil
jurisdiction”),[
Footnote 25]
and paper over the fact that Madison more than once repudiated the
views attributed to him by many, stating unequivocally that with
respect to government’s involvement with religion, the
“ ‘tendency to a usurpation on one side, or the other, or to a
corrupting coalition or alliance between them, will be best guarded
against by an entire abstinence of the Government from
interference, in any way whatever, beyond the necessity of
preserving public order, & protecting each sect against
trespasses on its legal rights by others.’ ”[
Footnote 26]
These seemingly nonconforming sentiments
should come as no surprise. Not insignificant numbers of colonists
came to this country with memories of religious persecution by
monarchs on the other side of the Atlantic. See A. Stokes & L.
Pfeffer, Church and State in the United States 3–23 (rev. ed.
1964). Others experienced religious intolerance at the hands of
colonial Puritans, who regrettably failed to practice the tolerance
that some of their contemporaries preached.
Engel v.
Vitale,
370 U. S. 421, 427–429 (1962). The
Chief Justice and Justice Scalia ignore the separationist
impulses—in accord with the principle of “neutrality”—that these
individuals brought to the debates surrounding the adoption of the
Establishment Clause.[
Footnote
27]
Ardent separationists aside, there is another
critical nuance lost in the plurality’s portrayal of history.
Simply put, many of the Founders who are often cited as
authoritative expositors of the Constitution’s original meaning
understood the Establishment Clause to stand for a
narrower proposition than the plurality, for whatever
reason, is willing to accept. Namely, many of the Framers
understood the word “religion” in the Establishment Clause to
encompass only the various sects of Christianity.
The evidence is compelling. Prior to the
Philadelphia Convention, the States had begun to protect “religious
freedom” in their various constitutions. Many of those provisions,
however, restricted “equal protection” and “free exercise” to
Christians, and invocations of the divine were commonly understood
to refer to Christ.[
Footnote
28] That historical background likely informed the Framers’
understanding of the First Amendment. Accordingly, one influential
thinker wrote of the First Amendment that “ ‘[t]he meaning of
the term “establishment” in this amendment unquestionably is, the
preference and establishment given by law to one sect of Christians
over every other.’ ” Jasper Adams, The Relation of
Christianity to Civil Government in the United States (Feb. 13,
1833) (quoted in Dreisbach 16). That definition tracked the
understanding of the text Justice Story adopted in his famous
Commentaries, in which he wrote that the “real object” of the
Clause was:
“not to countenance, much less to advance
Mahometanism, or Judaism, or infidelity, by prostrating
Christianity; but to exclude all rivalry among Christian sects, and
to prevent any national ecclesiastical establishment, which should
give to an hierarchy the exclusive patronage of the national
government. It thus sought to cut off the means of religious
persecution, (the vice and pest of former ages,) and the power of
subverting the rights of conscience in matters of religion, which
had been trampled upon almost from the days of the Apostles to the
present age.” 2 J. Story, Commentaries on the Constitution of the
United States §991, p. 701 (R. Rotunda & J. Nowak eds. 1987)
(hereinafter Story); see also
Wallace, 472 U. S., at
52–55, and n. 36.[
Footnote
29]
Along these lines, for nearly a century after the
Founding, many accepted the idea that America was not just a
religious nation, but “a Christian nation.”
Church of
Holy Trinity v.
United States, 143 U. S. 457, 471 (1892).[
Footnote 30]
The original understanding of the type of
“religion” that qualified for constitutional protection under the
Establishment Clause likely did not include those followers of
Judaism and Islam who are among the preferred “monotheistic”
religions Justice Scalia has embraced in his
McCreary
County opinion. See
post, at 10–11 (dissenting
opinion).[
Footnote 31] The
inclusion of Jews and Muslims inside the category of
constitutionally favored religions surely would have shocked Chief
Justice Marshall and Justice Story. Indeed, Justice Scalia is
unable to point to any persuasive historical evidence or entrenched
traditions in support of his decision to give specially preferred
constitutional status to all monotheistic religions. Perhaps this
is because the history of the Establishment Clause’s original
meaning just as strongly supports a preference for Christianity as
it does a preference for monotheism. Generic references to “God”
hardly constitute evidence that those who spoke the word meant to
be inclusive of all monotheistic believers; nor do such references
demonstrate that those who heard the word spoken understood it
broadly to include all monotheistic faiths. See
supra, at
21. Justice Scalia’s inclusion of Judaism and Islam is a laudable
act of religious tolerance, but it is one that is unmoored from the
Constitution’s history and text, and moreover one that is patently
arbitrary in its inclusion of some, but exclusion of other
(
e.g., Buddhism), widely practiced non-Christian
religions. See
supra, at 12, 13–14, and n. 16 (noting that
followers of Buddhism nearly equal the number of Americans who
follow Islam). Given the original understanding of the men who
championed our “Christian nation”—men who had no cause to view
anti-Semitism or contempt for atheists as problems worthy of civic
concern—one must ask whether Justice Scalia “has not had the
courage (or the foolhardiness) to apply [his originalism] principle
consistently.”
McCreary County, post, at 7.
Indeed, to constrict narrowly the reach of the
Establishment Clause to the views of the Founders would lead to
more than this unpalatable result; it would also leave us with an
unincorporated constitutional provision—in other words, one that
limits only the
federal establishment of “a national
religion.” See
Elk Grove Unified School Dist. v.
Newdow,
542 U. S. 1, 45 (2004) (Thomas, J.,
concurring in judgment); cf. A. Amar, The Bill of Rights 36–39
(1998). Under this view, not only could a State constitutionally
adorn all of its public spaces with crucifixes or passages from the
New Testament, it would also have full authority to prescribe the
teachings of Martin Luther or Joseph Smith as
the official
state religion. Only the Federal Government would be prohibited
from taking sides, (and only then as between Christian sects).
A reading of the First Amendment dependent on
either of the purported original meanings expressed above would
eviscerate the heart of the Establishment Clause. It would replace
Jefferson’s “wall of separation” with a perverse wall of
exclusion—Christians inside, non-Christians out. It would permit
States to construct walls of their own choosing—Baptists inside,
Mormons out; Jewish Orthodox inside, Jewish Reform out. A Clause so
understood might be faithful to the expectations of some of our
Founders, but it is plainly not worthy of a society whose enviable
hallmark over the course of two centuries has been the continuing
expansion of religious pluralism and tolerance. Cf.
Abington, 374 U. S., at 214;
Zelman v.
Simmons-Harris,
536 U. S. 639, 720, 723
(2002) (Breyer, J., dissenting).
Unless one is willing to renounce over 65
years of Establishment Clause jurisprudence and cross back over the
incorporation bridge, see
Cantwell v.
Connecticut,
310 U. S. 296, 303
(1940), appeals to the religiosity of the Framers ring
hollow.[
Footnote 32] But
even if there were a coherent way to embrace incorporation with one
hand while steadfastly abiding by the Founders’ purported religious
views on the other, the problem of the selective use of history
remains. As the widely divergent views espoused by the leaders of
our founding era plainly reveal, the historical record of the
preincorporation Establishment Clause is too indeterminate to serve
as an interpretive North Star.[
Footnote 33]
It is our duty, therefore, to interpret the
First Amendment’s command that “Congress shall make no law
respecting an establishment of religion” not by merely asking what
those words meant to observers at the time of the founding, but
instead by deriving from the Clause’s text and history the broad
principles that remain valid today. As we have said in the context
of statutory interpretation, legislation “often [goes] beyond the
principal evil [at which the statute was aimed] to cover reasonably
comparable evils, and it is ultimately the provisions of our laws
rather than the principal concerns of our legislators by which we
are governed.”
Oncale v.
Sundowner Offshore Services,
Inc.,
523 U. S.
75, 79 (1998). In similar fashion, we have construed the Equal
Protection Clause of the Fourteenth Amendment to prohibit
segregated schools, see
Brown v.
Board of
Education,
349
U. S. 294 (1955), even though those who drafted that Amendment
evidently thought that separate was not unequal.[
Footnote 34] We have held that the same
Amendment prohibits discrimination against individuals on account
of their gender,
Frontiero v.
Richardson,
411 U. S. 677
(1973), despite the fact that the contemporaries of the Amendment
“doubt[ed] very much whether any action of a State not directed by
way of discrimination against the negroes as a class, or on account
of their race, will ever be held to come within the purview of this
provision,”
Slaughter-House Cases, 16 Wall. 36, 81 (1873).
And we have construed “evolving standards of decency” to make
impermissible practices that were not considered “cruel and
unusual” at the founding. See
Roper v.
Simmons,
543 U. S. ___, ___ (2005) (slip op., at 1) (Stevens, J.,
concurring).
To reason from the broad principles contained
in the Constitution does not, as Justice Scalia suggests, require
us to abandon our heritage in favor of unprincipled expressions of
personal preference. The task of applying the broad principles that
the Framers wrote into the text of the First Amendment is, in any
event, no more a matter of personal preference than is one’s
selection between two (or more) sides in a heated historical
debate. We serve our constitutional mandate by expounding the
meaning of constitutional provisions with one eye towards our
Nation’s history and the other fixed on its democratic aspirations.
See
McCulloch v.
Maryland, 4 Wheat. 316, 407, 415
(1819) (“[W]e must never forget, that it is
a constitution
we are expounding” that is intended to “endure for ages to come,
and, consequently, to be adapted to the various
crises of
human affairs”). Constitutions, after all,
“are not ephemeral enactments, designed to meet
passing occasions. They are, to use the words of Chief Justice
Marshall, ‘designed to approach immortality as nearly as human
institutions can approach it.’ The future is their care and
provision for events of good and bad tendencies of which no
prophecy can be made. In the application of a constitution,
therefore, our contemplation cannot be only of what has been but of
what may be. Under any other rule a constitution would indeed be as
easy of application as it would be deficient in efficacy and power.
Its general principles would have little value and be converted by
precedent into impotent and lifeless formulas.”
Weems v.
United States,
217 U. S. 349, 373
(1910).
The principle that guides my
analysis is neutrality.[
Footnote
35] The basis for that principle is firmly rooted in our
Nation’s history and our Constitution’s text. I recognize that the
requirement that government must remain neutral between religion
and irreligion would have seemed foreign to some of the Framers; so
too would a requirement of neutrality between Jews and Christians.
But cf. Letter from George Washington to the Hebrew Congregation in
Newport, R. I. (Aug. 18, 1790), in 6 Papers of George
Washington 284, 285 (D. Twohig ed. 1996). Fortunately, we are not
bound by the Framers’ expectations—we are bound by the legal
principles they enshrined in our Constitution. Story’s vision that
States should not discriminate between Christian sects has as its
foundation the principle that government must remain neutral
between valid systems of belief. As religious pluralism has
expanded, so has our acceptance of what constitutes valid belief
systems. The evil of discriminating today against atheists,
“polytheists[,] and believers in unconcerned deities,”
McCreary
County,
post, at 10 (Scalia, J., dissenting), is in
my view a direct descendent of the evil of discriminating among
Christian sects. The Establishment Clause thus forbids it and, in
turn, forbids Texas from displaying the Ten Commandments monument
the plurality so casually affirms.
IV
The Eagles may donate as many
monuments as they choose to be displayed in front of Protestant
churches, benevolent organizations’ meeting places, or on the front
lawns of private citizens. The expurgated text of the King James
version of the Ten Commandments that they have crafted is unlikely
to be accepted by Catholic parishes, Jewish synagogues, or even
some Protestant denominations, but the message they seek to convey
is surely more compatible with church property than with property
that is located on the government side of the metaphorical
wall.
The judgment of the Court in this
case stands for the proposition that the Constitution permits
governmental displays of sacred religious texts. This makes a
mockery of the constitutional ideal that government must remain
neutral between religion and irreligion. If a State may endorse a
particular deity’s command to “have no other gods before me,” it is
difficult to conceive of any textual display that would run afoul
of the Establishment Clause.
The disconnect between this Court’s approval
of Texas’s monument and the constitutional prohibition against
preferring religion to irreligion cannot be reduced to the exercise
of plotting two adjacent locations on a slippery slope. Cf.
ante, at 8 (Breyer, J., concurring in judgment). Rather,
it is the difference between the shelter of a fortress and exposure
to “the winds that would blow” if the wall were allowed to crumble.
See
TVA v.
Hill, 437 U. S. 153, 195
(1978) (internal quotation marks omitted). That wall, however
imperfect, remains worth preserving.
I respectfully dissent.
[Graphic omitted: see printed opinion.]
Footnote 1
At the bottom of the message, the observer
learns that the display was “[p]resented to the people and youth of
Texas by the Fraternal Order of Eagles of Texas” in 1961. See
Appendix,
infra.
Footnote 2
Reynolds v.
United States,
98 U. S. 145, 164
(1879); see also
Everson v.
Board of Ed. of
Ewing,
330 U. S. 1, 16 (1947).
Footnote 3
As Senator Danforth recently reminded us,
“efforts to haul references of God into the public square, into
schools and courthouses, are far more apt to divide Americans than
to advance faith.” Danforth, Onward, Moderate Christian Soldiers,
N. Y. Times, June 17, 2005, p. A27.
Footnote 4
The accuracy and utility of this metaphor
have been called into question. See,
e.g.,
Wallace v.
Jaffree,
472 U. S. 38, 106 (1985) (Rehnquist,
J., dissenting); see generally P. Hamburger, Separation of Church
and State (2002). Whatever one may think of the merits of the
historical debate surrounding Jefferson and the “wall” metaphor,
this Court at a minimum has never questioned the concept of the
“separation of church and state” in our First Amendment
jurisprudence. The Chief Justice’s opinion affirms that principle.
Ante, at 4 (demanding a “separation between church and
state”). Indeed, even the Court that famously opined that “[w]e are
a religious people whose institutions presuppose a Supreme Being,”
Zorach v.
Clauson,
343 U. S. 306, 313
(1952), acknowledged that “[t]here cannot be the slightest doubt
that the First Amendment reflects the philosophy that Church and
State should be separated,”
id., at 312. The question we
face is how to give meaning to that concept of separation.
Footnote 5
There is now widespread consensus on this
principle. See
Everson v.
Board of Ed. of Ewing,
330 U. S. 1, 15 (1947) (“Neither a state
nor the Federal Government . . . can pass laws which aid one
religion, aid all religions, or prefer one religion over another”);
School District of Abington Township v.
Schempp,
374 U. S. 203, 226 (1963) (“In the
relationship between man and religion, the State is firmly
committed to a position of neutrality”);
Larson v.
Valente,
456 U. S. 228, 244 (1982) (“The
clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another”); see
also
Board of Ed. of Kiryas Joel Village School Dist. v.
Grumet, 512
U. S. 687, 748 (1994) (Scalia, J., dissenting) (“I have always
believed … that the Establishment Clause prohibits the favoring of
one religion over others”); but see
Church of Holy Trinity
v.
United States, 143 U. S. 457, 470–471 (1892).
Footnote 6
In support of this proposition, the
Torcaso Court quoted James Iredell, who in the course of
debating the adoption of the Federal Constitution in North
Carolina, stated: “ ‘it is objected that the people of America
may perhaps choose representatives who have no religion at all, and
that Pagans and Mahometans may be admitted into offices. But how is
it possible to exclude any set of men, without taking away that
principle of religious freedom which we ourselves so warmly contend
for?’ ” 367 U. S., at 495, n. 10 (quoting 4 J. Elliot,
Debates in the Several State Conventions on the Adoption of the
Federal Constitution 197 (1836 ed.)).
Footnote 7
See
Everson, 330 U. S., at 18 (the
Establishment Clause “requires the state to be … neutral in its
relations with groups of religious believers and non-believers”);
Abington, 374 U. S., at 216 (rejecting the proposition
that the Establishment Clause “forbids only governmental preference
of one religion over another”);
Wallace, 472 U. S., at
52–55 (the interest in “forestalling intolerance extends beyond
intolerance among Christian sects—or even intolerance among
‘religions’—to encompass intolerance of the disbeliever and the
uncertain”); cf.
Zorach, 343 U. S., at 325 (Jackson, J.,
dissenting) (“The day that this country ceases to be free for
irreligion it will cease to be free for religion—except for the
sect that can win political power”).
Footnote 8
Justice Scalia’s dissent in the other Ten
Commandments case we decide today, see
McCreary County v.
American Civil Liberties Union of Ky.,
post, at
1–11, raises similar objections. I address these objections
directly in Part III.
Footnote 9
Though this Court has subscribed to the view
that the Ten Commandments influenced the development of Western
legal thought, it has not officially endorsed the far more specific
claim that the Ten Commandments played a significant role in the
development of our Nation’s foundational documents (and the
subsidiary implication that it has special relevance to Texas).
Although it is perhaps an overstatement to characterize this latter
proposition as “idiotic,” see Tr. of Oral Arg. 34, as one Member of
the
plurality has done, at the very least the question is
a matter of intense scholarly debate. Compare Brief for Legal
Historians and Law Scholars as
Amicus Curiae in
McCreary County v.
American Civil Liberties Union of
Ky., O. T. 2004, No. 03–1693, with Brief for American Center
for Law and Justice as
Amici Curiae. Whatever the
historical accuracy of the proposition, the District Court
categorically rejected respondent’s suggestion that the State’s
actual purpose in displaying the Decalogue was to signify its
influence on secular law and Texas institutions. App. to Pet. for
Cert. A–32.
Footnote 10
See Brief for Fraternal Order of Eagles as
Amicus Curiae 2–3. The Order was formed in 1898 by six
Seattle theater owners, promptly joined by actors, playwrights, and
stagehands, and rapidly expanded to include a nationwide membership
numbering over a million.
Id., at 2; see also
Fraternal Order of Eagles v.
Grand Aerie of Fraternal
Order of Eagles, 148 Wash. 2d 224, 229, 59 P. 3d 655, 657
(2002) (en banc);
Lahmann v.
Grand Aerie of Fraternal
Order of Eagles, 180 Ore. App. 420, 422, 43 P. 3d 1130,
1131 (2002).
Footnote 11
See
Books v.
Elkhart, 235
F. 3d 292, 294–295 (CA7 2000);
State v.
Freedom
from Religion Foundation, Inc., 898 P. 2d 1013, 1017
(Colo. 1995) (en banc); see also U. S. Supreme Court will hear Ten
Commandments Case in Early 2005,
http://www.foe.com/tencommandments/ index.html (all Internet
materials as visited June 24, 2005, and available in Clerk of
Court’s case file).
Footnote 12
Freedom from Religion Foundation,
898 P. 2d, at 1017; accord, 1961 Tex. Gen. Laws 1995 (“These
plaques and monoliths have been presented by the Eagles to promote
youth morality and to help stop the alarming increase in
delinquency”); Brief for Fraternal Order of Eagles as
Amicus
Curiae 4.
Footnote 13
According to its articles of incorporation,
the Eagles’ purpose is to: “ ‘Unite fraternally for mutual
benefit, protection, improvement, social enjoyment and association,
all persons of good moral character who believe in a Supreme Being
to inculcate the principles of liberty, truth, justice and equality
…’ ”
Fraternal Order of Eagles, 148 Wash. 2d, at 229,
59 P. 3d, at 657. See also Aerie Membership
Application–Fraternal Order of Eagles
http://www.foe.com/membership/applications/aerie.html (“I, being of
sound body and mind, and believing in the existence of a Supreme
Being …”).
Footnote 14
In
County of Allegheny v.
American Civil Liberties Union, Greater Pittsburgh
Chapter,
492 U. S. 573 (1989)
, I noted
that certain displays of religious images may convey “an equivocal
message, perhaps of respect for Judaism, for religion in general,
or for law.”
Id., at 652 (opinion concurring in part and
dissenting in part). It is rather misleading, however, to quote my
comment in that case to imply that I was referring to the text of
the Ten Commandments
simpliciter. See
McCreary
County,
post, at 13–14.
Footnote 15
See
ante, at 5 (Breyer, J.,
concurring in judgment). Despite the Eagles’ efforts, not all of
the monuments they donated in fact conform to a
“universally-accepted” text. Compare,
e.g., Appendix,
infra (including the command that “Thou shalt not make to
thyself any graven images”), and
Adland v.
Russ,
307 F. 3d 471, 475 (CA6 2002) (same), with
Freedom from
Religion Foundation, 898 P. 2d, at 1016 (omitting that
command altogether). The distinction represents a critical divide
between the Protestant and Catholic faiths. During the Reformation,
Protestants destroyed images of the Virgin Mary and of Jesus Christ
that were venerated in Catholic churches. Even today there is a
notable difference between the imagery in different churches, a
difference that may in part be attributable to differing
understandings of the meaning of what is the Second Commandment in
the King James Bible translation and a portion of the First
Commandment in the Catholic translation. See Finkelman, The Ten
Commandments on the Courthouse Lawn and Elsewhere, 73 Ford.
L. Rev. 1477, 1493–1494 (2005).
Footnote 16
For example, in the Jewish version of the
Sixth Commandment God commands: “You shall not murder”; whereas,
the King James interpretation of the same command is: “Thou shalt
not kill.” Compare W. Plaut, The Torah: A Modern Commentary 534
(1981), with Appendix,
infra. The difference between the
two versions is not merely semantic; rather, it is but one example
of a deep theological dispute. See Finkelman,
supra, at
1481–1500; P. Maier, Enumerating the Decalogue; Do We Number the
Ten Commandments Correctly? 16 Concordia J. 18, 18–26 (1990).
Varying interpretations of this Commandment explain the actions of
vegetarians who refuse to eat meat, pacifists who refuse to work
for munitions makers, prison officials who refuse to administer
lethal injections to death row inmates, and pharmacists who refuse
to sell morning-after pills to women. See Finkelman,
supra, at 1494–1496; Brief for American Jewish Congress
et al. as
Amici Curiae 22–23. Although the command is
ambiguous, its power to motivate likeminded interpreters of its
message cannot be denied.
Footnote 17
Justice Scalia’s willingness to dismiss the
distinct textual versions adhered to by different faiths in the
name of generic “monotheism” based on mere speculation regarding
their significance,
McCreary County, post, at 19, is not
only somewhat ironic, see A. Scalia, A Matter of Interpretation
23–25 (1997), but also serves to reinforce the concern that
interjecting government into the religious sphere will offend
“adherents who consider the particular advertisement
disrespectful.”
Allegheny County, 492 U. S., at 651
(Stevens, J., concurring in part and dissenting in part).
Footnote 18
See Brief for Hindu American Foundation
et al. as
Amici Curiae. Though Justice Scalia
disagrees that these sentiments are consistent with the
Establishment Clause, he does not deny that our cases
wholeheartedly adopt this expression of neutrality. Instead, he
suggests that this Court simply discard what he terms the “say-so
of earlier Courts,” based in part on his own “say-so” that
nonmonotheists make up a statistically insignificant portion of
this Nation’s religious community.
McCreary County, post,
at 6. Besides marginalizing the belief systems of more than 7
million Americans by deeming them unworthy of the special
protections he offers monotheists under the Establishment Clause,
Justice Scalia’s measure of analysis may be cause for concern even
for the self-proclaimed “popular” religions of Islam and Judaism.
The number of Buddhists alone is nearly equal to the number of
Muslims in this country, and while those of the Islamic and Jewish
faiths only account for 2.2% of all believers, Christianity
accounts for 95.5%. See U. S. Dept. of Commerce, Bureau of Census,
Statistical Abstract of the United States: 2004–2005, p. 55
(124th ed. 2004) (Table No. 67).
Footnote 19
The fact that this particular display has
stood unchallenged for over forty years does not suggest otherwise.
One need look no further than the deluge of cases flooding lower
courts to realize the discord these displays have engendered. See,
e.g.,
Mercier v.
Fraternal Order of
Eagles, 395 F. 3d 693 (CA7 2005);
ACLU Nebraska
Foundation v.
Plattsmouth, 358 F. 3d 1020 (CA8
2004);
Adland v.
Russ, 307 F. 3d 471 (CA6
2002);
Summum v.
Ogden, 297 F. 3d 995 (CA10
2002);
Books v.
Elkhart, 235 F. 3d 292 (CA7
2000);
State v.
Freedom From Religion Foundation,
Inc., 898 P. 2d 1013 (Colo. 1995);
Anderson v.
Salt Lake City Corp., 475 F. 2d 29 (CA10 1973).
Footnote 20
This is, of course, a rhetorical approach not
unique to the plurality’s opinion today. Appeals to such religious
speeches have frequently been used in support of governmental
transmission of religious messages. See,
e.g.,
Wallace, 472 U. S., at 98–104 (Rehnquist, J., dissenting);
Lee v.
Weisman,
505 U. S. 577, 633–636 (1992) (Scalia,
J., dissenting);
Santa Fe Independent School Dist. v.
Doe,
530 U.
S. 290, 318 (2000) (Rehnquist, C. J., dissenting); cf.
Lynch v.
Donnelly,
465
U. S. 668, 675–676 (1984).
Footnote 21
It goes without saying that the analysis
differs when a listener is coerced into listening to a prayer. See,
e.g., Santa Fe Independent School Dist., 530
U. S., at 308–312.
Footnote 22
With respect to the “legislative prayers”
cited approvingly by The Chief Justice,
ante, at 8, I
reiterate my view that “the designation of a member of one
religious faith to serve as the sole official chaplain of a state
legislature for a period of 16 years constitutes the preference of
one faith over another in violation of the Establishment Clause.”
Marsh v.
Chambers,
463 U. S. 783, 823
(1983) (Stevens, J., dissenting). Thus, Justice Scalia and I are in
agreement with respect to at least one point—this Court’s decision
in
Marsh “ignor[ed] the neutrality principle” at the heart
of the Establishment Clause.
McCreary County,
post, at 8 (Scalia, J., dissenting).
Footnote 23
See,
e.g., J. Hutson, Religion and
the Founding of the American Republic 75 (1998) (noting the dearth
of references to God at the Philadelphia Convention and that many
contemporaneous observers of the Convention complained that “the
Framers had unaccountably turned their backs on the Almighty”
because they “ ‘found the Constitution without any
acknowledgement of God’ ”).
Footnote 24
See Letter from Thomas Jefferson to Rev. S. Miller
(Jan. 23, 1808), in 5 Founders’ Constitution 98; 11 Jefferson’s
Writings 428–430 (1905); see also
Lee, 505 U. S., at
623–625 (Souter, J., concurring) (documenting history);
Lynch, 465 U. S., at 716, n. 23 (Brennan, J., dissenting)
(same).
Footnote 25
See also James Madison, Detached Memoranda,
in 5 Founders’ Constitution 103–104. Madison’s letter to Livingston
further argued that: “There has been another deviation from the
strict principle in the Executive Proclamations of fasts &
festivals, so far, at least, as they have spoken the language of
injunction, or have lost sight of the equality of
all religious sects in the eve of the Constitution… .
Notwithstanding the general progress made within the last two
centuries in favour of this branch of liberty, & the full
establishment of it, in some parts of our Country, there remains in
others a strong bias towards old error, that without some sort of
alliance or coalition between [Government] & Religion neither
can be duly supported. Such indeed is the tendency to such a
coalition, and such its corrupting influence on both the parties,
that the danger cannot be too carefully guarded [against]… .
Every new & successful example therefore of a perfect
separation between ecclesiastical and civil matters, is of
importance. And I have no doubt that every new example, will
succeed, as every past one has done, in shewing that religion &
[Government] will both exist in greater purity, the less they are
mixed together.”
Id., at 105–106.
Footnote 26
Religion and Politics in the Early Republic
20–21 (D. Dreisbach ed. 1996) (hereinafter Dreisbach) (quoting
Letter from James Madison to Jasper Adams (1833)). See also Letter
from James Madison to Edward Livingston (July 10, 1822), in 5
Founders’ Constitution 106 (“We are teaching the world the great
truth that [Governments] do better without Kings & Nobles than
with them. The merit will be doubled by the other lesson that
Religion flourishes in greater purity, without than with the aid of
[Government]”).
Footnote 27
The contrary evidence cited by The Chief
Justice and Justice Scalia only underscores the obvious fact that
leaders who have drafted and voted for a text are eminently capable
of violating their own rules. The first Congress was—just as the
present Congress is—capable of passing unconstitutional
legislation. Thus, it is no answer to say that the Founders’
separationist impulses were “plainly rejected” simply because the
first Congress enacted laws that acknowledged God. See
McCreary
County,
post, at 13 (Scalia, J., dissenting). To
adopt such an interpretive approach would misguidedly give
authoritative weight to the fact that the Congress that passed the
Fourteenth Amendment also enacted laws that tolerated segregation,
and the fact that the Congress that passed the First Amendment also
enacted laws, such as the Alien and Sedition Act, that indisputably
violated our present understanding of the First Amendment. See n.
36,
infra;
Lee, 505 U. S., at 626 (Souter, J.,
concurring).
Footnote 28
See,
e.g., Strang, The Meaning of
“Religion” in the First Amendment, 40 Duquesne L. Rev. 181,
220–223 (2002).
Footnote 29
Justice Story wrote elsewhere that
“ ‘Christianity is indispensable to the true interests &
solid foundations of all free governments. I distinguish … between
the establishment of a particular sect, as the Religion of the
State, & the Establishment of Christianity itself, without any
preference of any particular form of it. I know not, indeed, how
any deep sense of moral obligation or accountableness can be
expected to prevail in the community without a firm persuasion of
the great Christian Truths.” Letter to Jasper Adams (May 14, 1833)
Dreisbach 19.
Footnote 30
See 143 U. S., at 471 (“ ‘[W]e are a
Christian people, and the morality of the country is deeply
ingrafted upon Christianity, and not upon the doctrines or worship
of … imposters’ ” (quoting
People v.
Ruggles, 8 Johns. 290, 295 (N. Y. Sup. Ct. 1811)));
see also
Vidal v.
Philadelphia, 2 How. 127,
198–199 (1844). These views should not be read as those of
religious zealots. Chief Justice Marshall himself penned the
historical genesis of the Court’s assertion that our
“ ‘institutions presuppose a Supreme Being,’ ” see
Zorach, 343 U. S., at 313, writing that the “American
population is entirely Christian, & with us, Christianity &
Religion are identified. It would be strange, indeed, if with such
a people, our institutions did not presuppose Christianity, &
did not often refer to it, & exhibit relations with it.” Letter
from John Marshall to Jasper Adams (May 9, 1833) (quoted in
Dreisbach 18–19). Accord, Story §988, p. 700 (“[A]t the time of the
adoption of the constitution, . . . the general, if not the
universal, sentiment in America was, that Christianity ought to
receive encouragement from the state …” (footnote omitted)).
Footnote 31
Justice Scalia’s characterization of this
conclusion as nothing more than my own personal “assurance” is
misleading to say the least.
McCreary County,
post, at 13. Reliance on our Nation’s early constitutional
scholars is common in this Court’s opinions. In particular, the
author of the plurality once noted that “Joseph Story, a Member of
this Court from 1811 to 1845, and during much of that time a
professor at the Harvard Law School, published by far the most
comprehensive treatise on the United States Constitution that had
then appeared.”
Wallace, 472 U. S., at 104 (Rehnquist, J.,
dissenting). And numerous opinions of this Court, including two
notable opinions authored by Justice Scalia, have seen it fit to
give authoritative weight to Joseph Story’s treatise when
interpreting other constitutional provisions. See,
e.g.,
United States v.
Gaudin,
515 U. S. 506, 510–511
(1995) (Fifth Amendment);
Harmelin v.
Michigan,
501 U. S. 957,
981–982 (1991) (Eighth Amendment).
Footnote 32
Justice Scalia’s answer—that incorporation
does not empty “the incorporated provisions of their original
meaning,”
McCreary County,
post, at 15—ignores
the fact that the Establishment Clause has its own unique history.
There is no evidence, for example, that incorporation of the
Confrontation Clause ran contrary to the core of the Clause’s
original understanding. There is, however, some persuasive evidence
to this effect regarding the Establishment Clause. See
Elk
Grove Unified School Dist. v.
Newdow, 542 U. S. 1, 49 (2004) (Thomas, J.,
concurring in judgment) (arguing that the Clause was originally
understood to be a “federalism provision” intended to prevent
“Congress from interfering with state establishments”). It is this
unique history, not incorporation writ large, that renders
incoherent the postincorporation reliance on the Establishment
Clause’s original understanding.
Justice Thomas, at least, has faced this
problem head-on. See
id., at 45 (opinion concurring in
judgment). But even if the decision to incorporate the
Establishment Clause was misguided, it is at this point unwise to
reverse course given the weight of precedent that would have to be
cast aside to reach the intended result. See Cardozo, The Nature of
the Judicial Process 149 (1937) (“The labor of judges would be
increased almost to the breaking point if every past decision could
be reopened in every case”).
Footnote 33
See
Lee, 505 U. S., at 626 (Souter,
J., concurring) (“[A]t best, … the Framers simply did not share a
common understanding of the Establishment Clause,” and at worst,
their overtly religious proclamations show “that they … could raise
constitutional ideals one day and turn their backs on them the
next”);
Lynch v.
Donnelly,
465
U. S. 668, 716 (1984) (Brennan, J., dissenting) (same); cf.
Feldman, Intellectual Origins of the Establishment Clause, 77
N. Y. U. L. Rev. 346, 404–405 (2002) (noting
that, for the Framers, “the term ‘establishment’ was a contested
one” and that the word “was used in both narrow and expansive ways
in the debates of the time”).
Footnote 34
See Hovenkamp, The Cultural Crises of the
Fuller Court, 104 Yale L. J. 2309, 2337–2342 (1995) (“Equal
protection had not been identified with social integration when the
Fourteenth Amendment was drafted in 1866, nor when it was ratified
in 1868, nor when
Plessy [v.
Ferguson,
163 U. S. 537] was
decided in 1896”); see also 1 L. Tribe, American Constitutional Law
§1–14, pp. 54–55, and n. 19 (3d ed. 2000) (collecting
scholarship).
Footnote 35
Justice Thomas contends that the
Establishment Clause cannot include such a neutrality principle
because the Clause reaches only the governmental coercion of
individual belief or disbelief.
Ante, at 4 (concurring
opinion). In my view, although actual religious coercion is
undoubtedly forbidden by the Establishment Clause, that cannot be
the full extent of the provision’s reach. Jefferson’s “wall”
metaphor and his refusal to issue Thanksgiving proclamations, see
supra, at 19, would have been nonsensical if the Clause
reached only direct coercion. Further, under the “coercion” view,
the Establishment Clause would amount to little more than a replica
of our compelled speech doctrine, see,
e.g., West
Virginia Bd. of Ed. v.
Barnette,
319 U. S. 624, 639
(1943), with a religious flavor. A Clause so interpreted would not
prohibit explicit state endorsements of religious orthodoxies of
particular sects, actions that lie at the heart of what the Clause
was meant to regulate. The government could, for example, take out
television advertisements lauding Catholicism as the only pure
religion. Under the reasoning endorsed by Justice Thomas, those
programs would not be coercive because the viewer could simply turn
off the television or ignore the ad. See
ante, at 3
(“[T]he mere presence of the monument … involves no coercion”
because the passerby “need not stop to read it or even to look at
it”).
Further, the notion that the application of a
“coercion” principle would somehow lead to a more consistent
jurisprudence is dubious. Enshrining coercion as the Establishment
Clause touchstone fails to eliminate the difficult judgment calls
regarding “the form that coercion must take.”
McCreary
County,
post, at 25 (Scalia, J., dissenting).
Coercion may seem obvious to some, while appearing nonexistent to
others. Compare
Santa Fe Independent School Dist.,
530 U. S., at 312, with
Lee, 505 U. S., at 642 (Scalia,
J., dissenting). It may be a legal requirement or an effect that is
indirectly inferred from a variety of factors. See,
e.g.,
Engel v.
Vitale,
370 U. S. 421, 431 (1962) (“When the
power, prestige and financial support of government is placed
behind a particular religious belief, the indirect coercive
pressure upon religious minorities to conform to the prevailing
officially approved religion is plain”). In short, “reasonable
people could, and no doubt would, argue about whether coercion
existed in a particular situation.” Feldman, The Intellectual
Origins of the Establishment Clause, 77 N. Y. U. L. Rev.
346, 415 (2002).
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