Laws from on high: religious displays on public property.

• Jurisdiction: United States
• Author: Jarret, Joseph G.
• Date: 01 December 2005

Opponents will most likely argue that courts should follow McCreary while proponents will probably argue that courts should follow Van Orden and permit displays currently being litigated and beyond.

One of society's most perennial, emotionally charged, contentious debates recently came to a head in Alabama as Americans watched, some with tears, others with nods of approval, as a monument of the Decalogue, or Ten Commandments, was removed from the rotunda of the Alabama State Judicial Building. Supporters of and opponents to displaying the Ten Commandments on public property quickly separated into two polarized factions: One group insisting that the establishment clause of the U. S. Constitution precluded the display of religious icons in public places, while another group asserted with equal fervor that such icons form the basis of American jurisprudence. In the middle of the controversy stood the person responsible for placing the Ten Commandments in the rotunda, one Roy Moore, who until recently, was the chief judge of the Alabama Supreme Court. That the same man can be painted with the brush of both saint and sinner exemplifies the fact that the issue of separation of church and state is alive and well in America.

The Establishment Clause

For those on the periphery of the debate over the Ten Commandments, there appears to be a bit of incredulity when one considers the brevity that is the establishment clause. To belabor the obvious, found in the First Amendment to the U. S. Constitution, the establishment clause reads as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The fact that the terms "separation of church and state" appear nowhere in the Constitution is troubling for litigants, the courts, and the average onlooker as well. One view that exists over this issue was penned by Issac Kramdick who said, "God and Christianity are nowhere to be found in the Constitution." Juxtapose this assertion against John Adams' pronouncement that "Our constitution was made only for a religious and moral people." A third scholar, noting the inability of layperson and lawyer alike to make much sense out of the Supreme Court's establishment clause opinions remarked that "the court has reaped the scorn of a confused and aroused public because it has been erratic and unprincipled in its Establishment Clause opinions." (1)

The Federal Response

The most consistent thing that can be said about the manner in which all of our federal courts have reacted to the introduction of monuments or things that contain religious symbols in or around public property is that there appears to be a penchant for the inconsistent. Such doctrinal inconsistencies, manifested in myriad court decisions have wreaked havoc on public discourse, not to mention public coffers, and have plunged local government officials into a morass of uncertainty. To be sure, some citizens believe that when it comes to religion and government, never the two shall meet. It takes a strong and enlightened judiciary to assert that America's legal system has its roots in English law, and not in Judeo-Christian doctrine. Some hold an opposing view, asserting that modern day courts have become increasingly hostile to public acknowledgment of the foundational role that the Judeo-Christian religion in general and the Ten Commandments in particular have played in our nation's heritage. Such conflicting ideologies are often inflamed due in part to the fact that while Congress, as well as state and local governments, may open public meetings with prayer, that same prayer uttered at a high school graduation ceremony, even if student-led, runs...