The law governing religious freedom is a mess — and that’s bad for religion and U.S. government.
U.S. District Court Judge James Parker of the New Mexico Circuit ruled recently that the city of Bloomfield, N.M., had to remove a monument containing the text of the Ten Commandments, because its placement on public grounds violated the requirement of the Establishment Clause.
But as the judge candidly admitted, the case was a close call and could have easily gone the other way if the facts were only slightly different. The jurisprudence of the U.S. Supreme Court regarding when it is constitutionally permissible to display a religious symbol on public property, Justice Clarence Thomas commented in 2011, “has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess.”
Sometimes such monuments are allowed, and sometimes not.
The federal court of the Second Circuit in New York recently allowed, for example, the famous World Trade Center Cross to be displayed at the National September 11 Memorial & Museum, despite objection that such a display constituted an unconstitutional “endorsement” of religion.
In the New Mexico case, the court mused, if the monument had been in the back of the public park (where other monuments displaying the Declaration of Independence, the Gettysburg Address and the Bill of Rights are located) rather than the front; or had the dedication ceremony been a little different; or had the city council adapted its monument policy before the cross was put up rather than after; then the display might have been constitutional after all.
The City of Bloomfield permitted the monument displaying the Ten Commandments to be placed in a public park. The monument itself was privately funded. A couple of months later, the City Council wrote a policy governing the placement of monuments in the park. This policy provided that the opportunity to place monuments would be open to all and the monuments would be temporary.
A lawsuit was filed by the ACLU, however, on behalf of two persons who claimed that passing the monument and reading its contents violated their First Amendment rights.
The New Mexico District Court found the history of the monument and its placement on government property violated the First Amendment. The court stated that in its view the City of Bloomfield had violated the Establishment Clause, because its conduct in authorizing the continued display of the monument on city property had the primary or principal effect of “endorsing religion.” The endorsement test, although not in the text of the Constitution, has become a typical means for judges to analyze such displays.
It is difficult not to sympathize with Judge Parker, given the confusion of precedent and the fine parsings of fact that decide such cases on such seemingly arbitrary bases. Indeed, the court stated that in such cases, “the Court is thrust into a realm of pretend and make-believe, guided only by confusing jurisprudence and its own imagination.” This is not a sensible situation, and it diminishes the nation’s rich tradition of religious compromise and expression.
Nevertheless, the case calls to mind some important principles.
Kristina Arriaga, executive director of the Becket Fund for Religious Liberty, states, “simply disliking a government monument does not mean that anyone can just run into court to make a federal case about it. ... The Establishment Clause does not require courts to scrub every religious reference from public life.”
Government in the United Sates should reflect our values as a people; and for many Americans, perhaps even most, these include religious values. Cities and localities sponsor or participate in all sorts of events and displays that reflect the nation’s rich religious traditions. To expect the government to steer clear of the traditions and values held and practiced by the majority of its people would render our democracy false to the people’s lived experience. In the absence of real oppression or injustice, courts should not act as roving commissions bent on eliminating religion from public view.
Further, the endorsement test — even if it made constitutional sense — is itself profoundly arbitrary. Along with the Ten Commandments, the Bloomfield park includes other monuments rooted in our religious tradition. The Declaration of Independence and the Gettysburg Address both give explicit reference to God. Indeed, the Declaration famously states that our basic human rights — among which are life, liberty, and the pursuit of happiness — are endowed by our Creator. Moreover, according to the Declaration, it is precisely the divine origin of these rights that secure their inalienable nature.
This language seems to “endorse” religion in a more direct way than the Ten Commandments. The Declaration goes so far as to say the very point of government is to “secure” these God-given rights. Yet, the case law has long left such language alone, and the plaintiffs in the New Mexico Ten Commandments case did not even bother to challenge these references. How could they, when such a challenge would force the Constitution to contradict itself?
Such arbitrariness in interpreting and applying the “endorsement” test is what makes these cases so contentious. Constitutional protection for the freedom of religion should not have to depend on judicial “make-believe” and “imagination,” no matter how sympathetic or fair-minded.
Gerald J. Russello is a lawyer and editor of The University Bookman.