In its decision in the case of Zorach v. Clauson in 1952, the U.S. Supreme Court upheld a New York City program that provided released time for the religious instruction of public school pupils during school hours but apart from public school buildings. The opinion for the 6-to-3 majority was written by Justice William O. Douglas, the very model of a liberal judge. At one point, Douglas observed: We are a religious people whose institutions presuppose a Supreme Being.
There have, however, always been differences of opinion among Americans about public acknowledgment of religious beliefs and behavior. Two instances among many strikingly illustrate these variations.
Nearly 60 years ago, two agitated citizens, Paul Blanshard (1892-1980) and Agnes Meyer (1877-1970), used to warn that the Catholic Church was a threat to the American republic. In his book American Freedom and Catholic Power (1949), Mr. Blanshard, a lawyer and one-time Congregationalist minister, likened the Vatican to the Kremlin. Mrs. Meyer, wife of the millionaire owner of The Washington Post, cautioned that the U.S. Catholic bishops were bent on destroying the public school system.
Even when they were most alarmed, however, these critics could not have foreseen a picture that appeared on the front page of The New York Times last month. This photograph showed the president of the United States, along with his wife, two former presidents and the U.S. secretary of state on a kneeler facing the body of Pope John Paul II as it lay in state in St. Peter’s Basilica.
The appearance of that picture was not a sign that questions about government and religion are no longer raised. Two complex fundamental issues are at least as controversial today as they ever have been: What may the government say about religion, and how far may it go to accommodate the presence of religion in public life? These questions underlie two cases that the U.S. Supreme Court is now weighing.
One case, which arose in Texas, focuses on a six-foot-tall stone slab into which the text of the biblical Ten Commandments has been incised. It was donated by the Benevolent and Protective Order of Elks and set up in 1961 on the grounds of the state capitol in Austina park area that contains several monuments. The second case deals with the posting of framed copies of the Ten Commandments in the courthouses of McCreary and Pulaski counties in Kentucky.
When the court heard arguments on these cases on March 5, Justice Sandra Day O’Connor remarked that it is hard to draw the line between displays that would be constitutional and those that would not.
The banning of these displays is contested; and, as Justice O’Connor said, some cases are hard to judge. Displays of the Ten Commandments have been traditional and are found in many court chambers, including that of the U.S. Supreme Court itself. All the same, these displays are now challenged by agencies like the American Civil Liberties Union. The objection is that they violate the neutrality toward religion that the First Amendment is said to impose upon the government and that they exert pressure upon citizens who are not religious believers.
In considering these cases, the court will presumably have certain principles and precedents in mind. For one thing, it is certain that officeholders are free to express their own faith. For instance, President Bush may say that God gave the Ten Commandments to the Hebrew people. It would be a different matter, however, if a state legislature should pass a resolution making a similar affirmation or should decide to place a cross atop the capitol building. For it is also clear that the U.S. government or a state government should neither speak nor act in a manner that seems to coerce citizens who are neither Christians nor adherents of any faith. As the Second Vatican Council said in its Declaration on Religious Freedom (1965), all human persons have a civil right to freedom or immunity from coercion in matters religious (No. 4).
At the same time, as Justice Douglas said, Americans are a religious people. Their coins are inscribed In God We Trust; their Congress and armed services are provided with chaplains; and their publicly funded museums contain religious art.
The court will hand down a decision on these Ten Commandment cases before the end of next month, when the current term closes. Indeed, it may do so before this page is published. At that time, some line will be drawn. It is unlikely that the court will issue a flat yes or noa sweeping decision banning all public display of the Decalogue or upholding all such displays. After all, these are small, even trivial, church-state cases. Heavier ones will be coming along, and more lines will be drawn. The American people are religious; they are also litigious.
