Academic journal article Vanderbilt Law Review

Unincorporated, Unprotected: Religion in an Established State

Academic journal article Vanderbilt Law Review

Unincorporated, Unprotected: Religion in an Established State

Article excerpt


In the summer of 2004, the group American Veterans Standing for God and Country ("American Veterans") began a cross-country pilgrimage to carry a 5,200-pound statue of the Ten Commandments to Washington D.C.1 The infamous statue cost Roy Moore his job as Chief Justice of the Alabama Supreme Court when he refused to remove it from the lobby of the state courthouse in 2002.2 American Veterans took up Moore's cause, however, and in October they brought the Commandments statue to a Christian rally in Washington, D.C.3 The group then planned to ask Congress to display the statue permanently in the Capitol Building.4 The president of American Veterans also joined Moore in a campaign to enact legislation that would prohibit the Supreme Court from reviewing cases involving any government official's "acknowledgement of God as the sovereign source of law, liberty, or government."5 As Moore explained in his recent book, "elected and appointed government officials have the right and obligation to acknowledge God as the foundation of American government."6

At least one observer has likened the campaign of American Veterans to that of the biblical David, who planned to establish a theocracy and use the religious law of Israel to unify his nation.7 concerns. For example, the superintendent of a Missouri school district was put "on leave" for refusing to remove a plaque of the Ten Commandments from a local public school and a cross and a Bible from his office.8 Roy Moore supported the superintendent, claiming that "God gives [him] [the] right" to display such items.9

Former-Justice Moore and his affiliates are not alone in suggesting that local governments and government officials should be allowed to display religious symbols in an official context or to make religion an official part of public life. Some jurists have suggested similar changes in church-state relations as they currently stand. For example, Chief District Judge Brevard Hand ruled in a 1983 decision that the Establishment Clause was not intended to apply to state governments and did not prohibit public school teachers from offering prayers in school.10

More recently, in Zelman v. Simmons-Harris, Justice Thomas suggested in his concurrence that the Court should treat the federal and state governments differently when faced with Establishment Clause challenges.11 He reasoned: "On its face, [the Establishment Clause] places no limit on the States with regard to religion. The Establishment Clause originally protected States, and by extension their citizens, from the imposition of an established religion by the Federal Government."12 Thus, Justice Thomas asserted: "[A] s a matter of first principles, I question whether . . . [the Court's current Establishment Clause] test should be applied to the States . . . [I]n the context of the Establishment Clause, it may well be that state action should be evaluated on different terms than similar action by the Federal Government."13

Justice Thomas's proposal, if adopted, would represent a dramatic shift in the Court's Establishment Clause jurisprudence as it presently stands. Since 1947, the Establishment Clause has been incorporated against state action through the Fourteenth Amendment,14 and the Court has used the Clause to invalidate numerous state laws and acts as unconstitutional.15

Although a number of judges and scholars have proposed that the Establishment Clause be unincorporated,16 it remains unclear how the change would affect state action. Some commentators have predicted that state judges would be able to commence jury sessions with prayer,17 school boards would be allowed to institute formal prayer in schools,18 and public school students could lead prayers at high school football games19 and graduation ceremonies.20 Other commentators maintain that unincorporation would have little effect on state action, which necessarily will be limited by the presence of a variety of faiths,21 state constitutional provisions protecting religion,22 and the federal Free Exercise and Due Process Clauses. …

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