The Supreme Court heard oral arguments on March 2 in the Ten Commandments display case of Van Orden v. Perry.
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 acrimonious debate.
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 history.
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 not-so-distant past.
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,