Academic journal article Texas Review of Law & Politics

The Constitutionality of Religious Symbolism after Mccreary and Van Orden

Academic journal article Texas Review of Law & Politics

The Constitutionality of Religious Symbolism after Mccreary and Van Orden

Article excerpt


The public display of symbols with religious significance has been the subject of extensive litigation in the last fifty years. That litigation culminated in two cases recently decided by the Supreme Court involving challenges to the public display of the Ten Commandments, McCreary County, Kentucky v. ACLU of Kentucky1 and Van Orden v. Perry.2 In these two decisions, the Court did little to clarify the law in this area. In McCreary, it struck down a display of the Ten Commandments in a county courthouse as a violation of the Establishment Clause. In a plurality opinion in Van Orden, it affirmed a display of the Ten Commandments on the grounds of the Texas State Capitol, leaving the lower courts to sort out the principles that resulted in such disparate results regarding substantially similar displays.

While the decisions are less than a model of clarity, they do suggest some principles that may be applied by courts in considering the constitutionality of similar displays, as well as some potential clues as to the Court's future jurisprudence in this area. In particular, two themes emerge from the Court's decisions.

First, the Court made clear that displays having historical as well as religious significance generally do not violate the Establishment Clause. This came across most clearly in Van Orden, where four Justices reiterated their belief that religious displays having historical significance, such as those depicting the Ten Commandments, were plainly constitutional.3 A fifth Justice, Justice Breyer, espoused similar views.4 Given the recent changes in the Court's personnel, it is likely that this theme running through the Court's decisions will take on a more prominent role.

Indeed, a constitutional rule that prohibited the display of items that have religious significance would manifest a profound hostility to religion, would be inconsistent with traditional notions regarding the proper roles of church and state, and would largely exclude religion from the public square. Such a rule, moreover, is unnecessary given that displays that convey a "dual message," one that is both historical and religious, do not necessarily suggest any "endorsement" of religion. In allowing such displays on government property, the government may merely be recognizing the historical significance of the items contained in the display.

Second, in its recent decisions, the Supreme Court reaffirmed the objective nature of the test used to evaluate whether a particular display constitutes an establishment of religion. In McCreary, the Court took great pains to make clear that it was in fact adhering to an objective test in striking down the Ten Commandments display and that it was only the unusual history of that display that made it constitutionally impermissible.5 While some may dispute whether the Court properly applied that test, in both McCreary6 and Van Orden,7 the Court reiterated that the test was an objective one.

Again, the emphasis on the objective nature of the constitutional test may be beneficial in terms of establishing guidelines for the display of religious symbols. An objective test is far easier to administer and apply than a subjective test and may in the long run lead to a reduction in the amount of litigation, which can often be particularly divisive and consume scarce resources. Moreover, the objective test prohibits the "heckler's veto"; it is not the hypersensitive member of society whose values and judgments govern the constitutionality of a particular display but rather the judgment of a reasonable member of society. Were the rule otherwise, religion would be excluded entirely from public fora given that one may always find someone who is offended by a particular display of religious symbolism.

Despite these recent developments, given the recent changes in the Court's composition, it is possible that it may substantially redefine its religion clause jurisprudence. …

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