Freethought Today · Vol. 28 No. 1 January/February 2011

Published by the Freedom From Religion Foundation, Inc.

Legal scholar addresses FFRF convention

‘Monumental questions’ for court

Journalist Linda Greenhouse spoke at the 33rd national FFRF convention Oct. 29, 2010, in Madison, Wis., and answered many questions afterward from the audience.

It’s a pleasure to be here. I’ve only been in Madison a couple of hours, and I’ve had really interesting conversations already. I thought the lieutenant governor [who had just spoken to the audience via video] was really cool. As Annie Laurie remarked, she and I have known each other, without ever meeting face to face, for many years. I really am an admirer of the work of the Foundation.

When I was covering the court on a daily basis, there was a constant drip, drip, drip of the effort to keep religion in the public square. The briefs that [FFRF] lawyers filed and just your general take, I always found refreshing and very enlightening.

I have a new book out that is an effort to reconstruct the conversation about abortion that was going on in the United States for the decade before the court ruled in Roe v. Wade. My co-author and colleague at Yale, Reva Siegel, and I spent the better part of a year immersed in archives and legal papers of long-forgotten cases and personal papers and so on — all kinds of interesting stuff just to try to look back without the distorting lens of Roe v. Wade and see what the world really looked like at the time the Supreme Court ruled in Roe. One thing that really comes through in our research is the role of the Catholic Church in maintaining opposition to abortion at the first glimmers of reform in the early 1960s.

Anyone who cares about the separation issue ought to miss Justice Stevens acutely.

People talk about the backlash against Roe v. Wade, and actually that’s a misunderstanding of history. It was actually more of a “frontlash” — well before the court ruled, the church was reacting the minute anybody mentioned reform of the criminal abortion laws — abortion was a crime, of course, in every state at the beginning of the 1960s. The church was very strategic and spun off the National Right to Life Committee as if it were an independent organization, to start speaking in a secular voice to gain allies outside of its own faithful. It was very successful in doing that.

The anti-abortion movement in its original form, before the evangelicals made common cause with the Catholics, was actually a Catholic movement. Moral Majority founder Jerry Falwell didn’t preach his first sermon against abortion until 1979. People think of the evangelicals as really having driven the anti-abortion movement. It’s really not true. The immediate years preceding Roe, when the winds of reform were blowing everywhere and every religious denomination was called upon to issue some policy statement about abortion — the National Association of Evangelicals, the Southern Baptist Convention — these groups that we would think of now as on the right of the Protestant spectrum, were not in fact categorically opposed to abortion. They were open to reform. It was only the Catholic Church that was categorically opposed to it.

The title of my talk, “Monumental Questions for the Supreme Court,” reflects a striking reality about our legal landscape, which is that case after case, year after year, Supreme Court term after Supreme Court term, courts are asked to validate religious belief and observance by upholding the display of religious monuments on public land when such displays are challenged as violations of the Establishment Clause and of the Constitution’s protection for the separation of church and state.

I know that FFRF has been at the forefront of many of these battles. As a separationist myself, I commend you for this. This organization has created and obviously is continuing to create a very proud and important legacy, so I feel there’s not a lot I can teach you about the subject. I’m not here as somebody who’s preaching to you, but teaching you. I see my role as kind of synthesizing and pulling together some threads that I’ve seen on the legal landscape that might clarify some of this disputed terrain and put some of the current developments in perspective.

When I agree to speak about some legal subject, I have to worry about being overtaken by events because the law might change. But there’s little chance of being overtaken by events in the battle over keeping religious monuments standing, because that’s just going to go on forever, it seems. In fact, the 8-foot-high cross on a hilltop in the Mojave Desert in southeastern California, the display of which didn’t seem to bother the Supreme Court very much in a really preposterous decision last year — that cross, although the court said that the government didn’t have to take it down, has already disappeared. Somebody stole it, but the case goes on.

These disputes play out constantly in other contexts, not just about the display of monuments. Next Wednesday, in a case in which FFRF has filed an excellent brief, the Supreme Court will hear arguments in Arizona Christian School Tuition Organization v. Winn. It’s the latest iteration in the endless effort to channel public money to religious schools.

When I was a very young reporter, before I started covering the court, I covered the New York Legislature. My ambition was to be a political reporter. Those were the days in the 1970s when the appetite in New York to channel money to parochial schools was just endless, and bills kept passing. The Legislature would find new ways of doing it, the Supreme Court would strike it down, and they’d go back to the Legislature and tweak it a little bit, and the Supreme Court would strike it down.

This constant dialectic wouldn’t be happening today, because the Legislature would tweak it a little bit and the Supreme Court would say, “Oh, fine. Thank you.” This new case that’s going to be argued on Wednesday is one of those.

The government can’t directly appropriate money for religious schools, and since states and school districts really aren’t too interested in going the route of tuition vouchers, for all kinds of political and policy reasons, states are trying to do something else. Arizona has set up an amazingly convoluted system that lets taxpayers shift a portion of the tax payment — a direct credit right off the top of the tax bill — to a nonprofit that then provides scholarships with that money for use at private schools. But most of the private schools are religious schools, so it’s basically a way of taking tax dollars and passing it right into the hands of these religious schools. It’s really a pretext concealed in a subterfuge. Rube Goldberg, if he were an artist at the Supreme Court, would even have trouble designing a poster that would show how this is supposed to work. It’s a case that’s really very cynical.

The court has a very good website [supremecourt.gov] these days. You can follow cases easily and get transcripts within a few hours after the case is argued. A new practice this term is that every Friday, they put up the audio of every case that was argued during that week.

Cross in the desert

You’d have been hard-pressed to make up the facts in the Mojave cross case called Salazar v. Buono. The court ended up by sort of upholding it only by finding that the display of a cross standing alone on Sunrise Rock did not amount to an endorsement of the Christian religion. How could that be, you might ask? You don’t have to be a member of FFRF to say, “What the — run that by me again.”

I’m not actually sure that I can explain how the court reached that decision because the case produced six separate opinions, none of them for a majority of the court. The complicating factor was that the few square feet of ground on which the cross stood is no longer technically owned by the government. After Frank Buono sued successfully for an Establishment Clause violation, Congress intervened and transferred the land to the VFW — the idea being, “It’s not on government land. It’s on private land, so what’s the problem?”

Did this government action have the necessary secular purpose? Is trying to get a case out of the hands of a federal judge, which basically was the motivation here, a secular purpose? The lower courts didn’t think so and issued an injunction to block the transfer. Then, last spring, Justice Anthony Kennedy wrote for a plurality of the Supreme Court that the cross wasn’t religious in the first place.

Kennedy said the cross, put up as a World War I monument, was “intended simply to honor our nation’s fallen soldiers.” To remove it would “convey disrespect for those the cross was seen as honoring.”

Note the use of the word “seen.” Seen by whom? If you or I saw a lone cross on top of a barren hillside on what for acres or miles around was federal property (it’s a national preserve, in fact), World War I and its fallen soldiers would not immediately leap to mind. Or if it did, might it not occur to at least some of us that not all of the fallen soldiers were necessarily Christian?

No matter. “The goal of avoiding government endorsement does not require eradication of all religious symbols in the public realm,” Justice Kennedy tells us, which is obviously a truism that can’t begin to answer the questions posed by this case.

The court vacated the injunction and sent the case back for consideration of whether some less “drastic” remedy such as a sign making clear that the government doesn’t own the cross might satisfy a “reasonable observer” that no endorsement was involved.

This incoherent decision was no great surprise, because the oral argument that preceded it had been truly bizarre. In his colloquy with the plaintiff’s lawyer, Justice Antonin Scalia insisted that the cross should be seen as honoring all of the dead and not just the Christian soldiers. He seemed unable to understand why anyone would find the solitary cross inappropriate for that purpose. “What would you have them erect” he asked the lawyer, “some conglomerate of a cross, a Star of David and a Muslim half moon and star?”

The lawyer, who happened to be the son and grandson of Jewish war veterans replied, “Well, Justice Scalia, the cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries, and there is never a cross on the tombstone of a Jew.”

Justice Scalia: “I don’t think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that’s an outrageous conclusion.”

Commandments, holiday displays

Last year a federal appeals court ruled in a dispute over a Ten Commandments monument on the lawn of an Oklahoma county courthouse. The 8-foot-tall monument had been erected by the Board of Commissioners at the request of a constituent, a construction worker and part-time minister who told the commissioners that, “The Lord has burdened my heart” to create and place the monument in that spot.

It was dedicated in a public ceremony with 17 churches represented. A county commissioner, not a minister, commented to the media, “The good Lord died for me; I can stand for him. I’m a Christian and I believe in this.”

The American Civil Liberties Union and a local resident, also a Christian, but a different kind of Christian, sued but lost in federal district court. A three-judge appeals court reversed the decision, finding the display unconstitutional because in context, given its history, and how it came to be standing there on the courthouse lawn, a reasonable observer would understand it represented endorsement of religion by government.

The county appealed to the full appeals court, which refused to rehear the case on a 9-9 vote. Three of the judges who wanted to review the case wrote a dissenting opinion. They said the court’s action reflected a “regrettable misapprehension that recognition of the role of religion in this country’s founding history, traditions, and laws, is to be strictly excluded from the civic sphere.”

There are many other cases on religious displays, with each having a different, interesting twist. There was a case from Pennsylvania called Modrovich v. Allegheny County, a lawsuit over a Ten Commandments plaque affixed since 1918 to an exterior courthouse wall. Two atheists sued to have it removed and lost.

Two judges, a majority of a panel of the 3rd Circuit U.S. Court of Appeals, held that in the context of several other courthouse historical displays, a reasonable observer (always a reasonable observer) would not view the plaque as an official endorsement of religion

Allegheny County has plenty of experience with such disputes. In a landmark 1989 church-state case, the court evaluated two holiday displays in downtown Pittsburgh. One was a crèche, donated by the Catholic Holy Name Society, on the grand staircase of the courthouse. The other was an 18-foot-tall menorah placed outside the City-County building next to a 45-foot Christmas tree. The tree belonged to the city, and the menorah belonged to Chabad-Lubavitch, an Orthodox Jewish group, although it was erected, taken down and stored every year by the city.

The Supreme Court held that the stand-alone crèche couldn’t stand. It effectively endorsed a patently Christian message, the court said, which made it impermissible. But the menorah’s message was “not exclusively religious,” because the Hanukkah holiday itself has “both religious and secular dimensions.” Really?

A Christmas tree, the court said, was not a religious symbol at all. The court also concluded the display was a secular civic acknowledgement of two religious traditions: “The combination of the tree and the menorah communicates not a simultaneous endorsement of both the Christian and Jewish faiths, but instead a secular celebration of Christmas coupled with an acknowledgement of Hanukkah as a contemporaneous alternative tradition.”

The decision struck me as quite odd when I had to write about it 20 years ago. Reading it again in preparing for this talk, it seems odder still. Here was a court that at the time contained not a single Jewish justice, but still had the nerve to expound on the meaning of Hanukkah and declare it to be a contemporaneous alternative to Christmas. The court was obviously struggling to extricate itself from a doctrinal box and in the process managed to aggrandize, mischaracterize and insult Hanukkah all at once.

I spoke at a law school conference last summer in Israel. I later was interviewed by an Israeli reporter who wanted to know how U.S. courts have been treating Jewish observances these days. When I told him that Hanukkah had officially been declared a contemporaneous alternative to Christmas, the reporter was speechless.

Faux ‘Foundations’

Many of you probably remember the 2005 case of McCreary County v. ACLU of Kentucky, which challenged a Ten Commandments display that had been posted in its first iteration in 1999 on courthouse walls in two Kentucky counties.

After the ACLU sued, the counties changed their displays. They added framed copies of other documents, including the Magna Carta and the lyric of “The Star-Spangled Banner.” The county executives then claimed in the litigation that their purpose all along had not been religious — although it started out with just the Ten Commandments — but rather to celebrate the “Foundations of American Law and Government.” Remember that phrase.

The Supreme Court in 2005 declared the displays unconstitutional. Justice David Souter wrote a majority opinion in which he said essentially that while he was born at night, it wasn’t last night. He said that the claim of secular civic purpose couldn’t be taken seriously and that observers ­— that reasonable observer again, this time actually reasonable — wouldn’t be naive enough to accept it. A reasonable observer would know the history, Justice Souter said, and “would probably suspect that the counties were simply reaching for any way to keep a religious document on the walls of courthouses that are constitutionally required to embody religious neutrality.”

However, and this is a much bigger “however” than I realized at the time, Justice Souter also said that the court did not “have occasion here to hold that a sacred text can never be integrated constitutionally into a governmental display on the subject of law or American history.” Why he said that, I don’t know, but it was a 5-4 opinion, and he might have needed to say it to hold on to a fifth vote.

Religious groups and their government allies all over the country have taken this as a green light to go ahead. They’ve been placing “Foundations” displays, with the Ten Commandments, of course, because that’s obviously the point, all over the place. The South Carolina Legislature passed a law specifically to permit such displays to be erected “in a visible public location in the public buildings of this state” as long as the Ten Commandments were described in the exact words that the Kentucky courthouses used: as “the moral background of the Declaration of Independence and the foundation of our legal tradition.”

Meanwhile, McCreary County has been revived because the Supreme Court decision wasn’t actually a final judgment. The case went back in 2008 to the federal district court, which again ruled against the counties. This past summer, a federal appeals court affirmed the district court judgment over a vigorous dissent by one judge, who criticized what he called “the Supreme Court’s persistent hostility to religion,” while praising the “powerful and logically compelling dissent” that Justice Scalia had filed in the original case in 2005.

Two days ago, Liberty Counsel attorney Matt Staver, also the dean of Liberty University School of Law, which is Pat Robertson’s law school, announced the counties’ intention to file another Supreme Court appeal. [The petition, McCreary County, KY v. American Civil Liberties Union of Kentucky, No. 10-566, was filed on Oct. 27, 2010]. Staver observed that it is “pretty clear to everyone that the court has changed since 2005,” as indeed it has. Justice Sandra Day O’Connor is now gone, and her successor, Justice Samuel Alito, is not likely to see the issue the same way.

The greatest modern separationist, Justice John Paul Stevens, is gone, too. We don’t know where his successor, Justice Elena Kagan, stands on church-state issues. I assume she stands basically where he did.

But even if she would vote the same way, I doubt that she’ll bring, at least in her early years on the court, the same clarifying passion that Justice Stevens brought to such issues as, for instance, the role of religion in the abortion debate. He was the only justice ever willing to say out loud in published opinions that the assertion that life begins at conception is a statement of religious belief, one that the state ought to be prevented by the Establishment Clause from using as the basis for public policy. Anyone who cares about the separation issue ought to miss Justice Stevens acutely.

The new Ten Commandments petition raises four main questions on the issue for the Supreme Court, but the two most interesting are these:

• “Whether the passage of nearly 10 years, a change in government decision-makers, official renunciation of prior actions, and a display and resolution setting forth legitimate secular purposes are constitutionally significant facts sufficient enough to erase a so-called taint of religious purpose found in prior displays found on a courthouse wall containing the Ten Commandments.”

They’re saying that enough time has passed — basically, that this is now and that was then, and you should now say it’s OK. That’s kind of a Kentucky courthouse-specific question. Then they ask a very significant further question:

• “Whether a new test for Establishment Clause purposes should be set forth by this court when the government displays or recognizes historical or otherwise passive expressions or displays of religion.”

If the court agrees that there should be a new test — no longer the endorsement test, no longer the so-called Lemon test — that would open the door to pretty much everything. The government could just say, “We’re just passively recognizing the historical. . .” — the fact that, whatever, you can write it yourself. You can write the arguments yourself.

I think it’s highly likely that the government will grant this case, although they won’t necessarily agree to decide all of those questions. But I think they’re going to take the case. And some justices will press to change the law. Others will take the narrower position on the first question, that the facts have changed, but in any event, I would say prepare yourselves for seeing lots of Ten Commandments in public places as you wander the countryside in the coming years.

What the future holds

The saga that I’ve just narrated raises the question of what exactly the American public expects from the Supreme Court on these issues. It’s clear that many Americans believe that the justices ought to reflect and ratify their own understanding of how the country ought to be working.

I read USA Today every day — I read it faithfully, if I can use that word here — because it provides such an interesting window on what people are thinking. This letter to the editor appeared in USA Today earlier this month: “Our next justice should be moderate, pragmatic, open-minded, Protestant, and a member of middle America. Last time I checked we were still the majority, yet we do not have one justice.”

Another letter, also this month, was a little more pointed, noting the fact that there are three Jews and six Catholics on the court: “With the majority of the country being Protestant, the court is ominously out of balance.”

It’s hard to know in the abstract what statements like these mean. As I learned from studying the history of the abortion debate for my new book, Protestantism is an awfully big tent. In the 1960s and ’70s, it included the brave ministers of the Clergy Consultation Service on Abortion — which in the years before Roe referred desperate women for illegal, but safe, abortions — and the members of the Religious Right. The latter eventually made common cause with the Catholic Church to oppose legal abortion in the years after Roe.

I don’t know what to make of these statements other than to interpret them as a sign of general disquiet and alienation on the part of people who have persuaded themselves that their voices are more likely to be heard by a court whose justices, or at least some justices, pray in their church.

Again, turning to USA Today, Henry Brinton, who is a well-known liberal Presbyterian minister in the Washington area, had a really interesting op-ed earlier this month, noting that the Supreme Court had permanently closed its front doors to the public last spring. Did you all hear about this? The big ceremonial brass doors on top of the marble stairs were closed, supposedly for security reasons, and people have to enter underneath the stairs and go through a little passageway. It’s really sad.

Noting that, Reverend Brinton declared, “We worship the God of Security. Security,” he went on, “is a false God.”

I know that many, most of you, all of you, in this room believe there are many false gods, but you probably know better than I to expect the Supreme Court to agree with you.

Thank you very much.

Linda Greenhouse, who earned a master’s degree from Yale Law School, covered the U.S. Supreme Court for the New York Times between 1978 and 2008. She received the Pulitzer Prize in Journalism (Beat Reporting) in 1998 “for her consistently illuminating coverage” of the court. Her biography of Justice Harry Blackmun, Becoming Justice Blackmun, was published in 2005. Her latest book is Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (with Reva B. Siegel). Before Roe, a 335-page hardback, is available from ffrf.org/books/ for $29 ppd.

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