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BY JOHN FARINA
Supreme Court heard oral arguments on March 2 in the Ten Commandments display
case of Van Orden
Although Catholics have largely
ignored the issues it presents, we do so at our peril.
During the 1990s, the Supreme
Court replaced the doctrine of strict separation with the concept of neutrality
in church-state matters. So aid that
might flow from the government to individual citizens through public benefit
programs that indirectly benefit a religious organization would no longer be
seen as state endorsement of religion.
Neither would the Court be
concerned, as it had been during the 1970s and 80s, with the symbolic effect
that aid to religious schools might have in creating the appearance of state
endorsement of religion. So state-paid teachers in New York serving the needs
of special students would not have to teach in a trailer off school grounds. A deaf student in California who qualified
for paid interpreters in public schools could get the same benefit when they
went to a parochial school, and Catholic schools in Louisiana could get state
funds for educational equipment.
Most significantly, parents who
qualified for voucher programs in Ohio could send their children to Catholic
schools, if they chose.
For decades, Catholics had argued
that their schools and the taxes of Catholic school parents provided public
benefits that should be credited in some way.
The voucher decision in 2002 represented a watershed in that long, often
The good news on school aid has
been met by initiatives on the part of separationists
to ban displays of religious symbols on public property. Most of those cases involved local
governments who had monuments displaying the Ten Commandments or religious
symbols. The outcomes of cases in local
courts have been varied, with many not reflecting the broader trend away from
strict separationist principles that has marked the
school aid cases.
In the matter now before the
Supreme Court, a case from Kentucky and one from Texas have been joined. The Kentucky case involves Ten Commandments
displays in county courthouses of McCreary and Pulaski counties, as well as in
the schools of Harlan County. The
displays at first included only the Ten Commandments. After legal challenges resulted in an
injunction ordering their removal, the state added various historic elements,
such as the national motto, the preamble of the Kentucky constitution, and Abraham Lincoln’s proclamation of a
National Day of Prayer.
The state court held that
represented an endorsement of religion, prohibited by the Establishment
Clause. The Texas case concerns a Ten
Commandments monument on the grounds of the State Capitol in Austin. It sits
beside 16 other monuments depicting various aspects of Texas history.
Rejecting the petition to remove
the monument, the Texas court claimed the display had a valid secular purpose
to illustrate the role played by religious ideas in shaping the state’s
If the recent oral arguments are
any clue, it seems likely that the Supreme Court will try to distinguish
between displays that have an overt religious purpose that clearly overshadows
any secular purpose and those that reflect the history and traditions of a
people and, as such, have legitimate secular purposes, despite their religious
character. So the Kentucky displays will
have to go, and the monument at the Texas Capitol will remain.
Catholics might feel display
cases are more the concern of Evangelicals, who view attempts to remove
displays as efforts to take God out of our nation’s public life. With a more
subtle understanding of how religion and culture interact and with more
pressing battles over abortion, stem-cell research, and marriage, it might seem
like display cases merit little concern.
Yet Catholics would do well to
pay attention here, not because we feel like our faith will be shaken by the
removal of some monuments, but because we do not agree with those who fear that
any cooperation between church and state is dangerous to the public welfare.
The Church has placed itself
clearly behind religious liberty and human rights. Any time we ask government
to care for the poor or do justice to the oppressed, we abandon strict separationist thinking. In its battle against the vicious
secularisms of the past century that limited both the institutional and private
freedoms of Catholics, the Church has been a great advocate of the rights of
persons to religious expression.
To think that the efforts to
remove Ten Commandments displays are completely distinct from those sentiments
is naïve, and to ignore that some advocates of a religion-free public square
would like to see churches taxed, the priest-penitent privilege removed, and
Catholic hospitals forced to provide abortions likewise ignores a
At the same time, Catholics
should resist efforts to use the state to advance one religion over another, as
some thought was the case with the Alabama Ten Commandments case and Judge Ray
Moore. If the direction of the Court on
school aid is any indication, the Court will likely draw a similar distinction
when dealing with the cases now before it. We can only hope it does.
John Farina is a Senior Fellow
at Woodstock Theological Center,