Public Displays of Affection ... for God: Religious Monuments after McCreary and Van Orden
Clement, Edith Brown, Harvard Journal of Law & Public Policy
INTRODUCTION I. MCCREARY AND VAN ORDEN A. McCreary B. Van Orden II. REFLECTIONS ON MCCREARYAND VAN ORDEN III. TWO "PURPOSE" APPROACHES AFTER MCCREARY AND VAN ORDEN A. Skeptical Approach: Buono I-IV B. Purpose-Sensitive Approach: Access Fund IV. FUTURE QUESTIONS
On March 2, 2005, the United States Supreme Court heard two cases involving the constitutionality of public displays of the Ten Commandments under the Establishment Clause of the First Amendment: McCreary County v. ACLU (1) and Van Orden v. Perry. (2) McCreary involved a display of nine copies of historically significant documents in identical frames hanging on the walls of two Kentucky courthouses. The documents included the Magna Carta, the Declaration of Independence, and the lyrics to The Star-Spangled Banner. They also included the text of the Ten Commandments, accompanied by a statement explaining the role of the Commandments in influencing American law. In Van Orden, the challenged display was a granite monument--six feet high and three-and-a-half feet wide--whose primary content was the text of the Ten Commandments but which also included two Stars of David and the Greek letters Chi and Rho, an ancient symbol for Jesus Christ. As one commentator predicted at the time, "[T]hese two cases are likely to be resolved in accordance with I Kings 3:16-28[:] And [O'Connor] said: 'Fetch me a sword.' And they brought a sword before [O'Connor]. And [O'Connor] said: 'Divide the living child in two, and give half to the one, and half to the other.'" (3)
The baby was split, but not by Justice O'Connor. Justice Breyer emerged as the supposed Solomon in both cases, and it was he who wrote the controlling opinion in Van Orden. Perhaps to the surprise of some, the Court held in a fragmented opinion that the large granite monument in Van Orden was indeed constitutional. And instead of upholding the carefully nuanced historical display in McCreary, the Court held that its stormy history, including repeated legal and rhetorical battles concerning both its form and substance, rendered it an unconstitutional establishment of religion.
I respectfully submit that McCreary and Van Orden imprudently shifted religious monument jurisprudence under the Establishment Clause away from a display-focused analysis and toward an actor-focused analysis. A display-focused approach emphasizes the placement and content of the display itself and is expressed in "bright-line" legal rules that are applicable to all monuments of a particular type. An actor-focused approach, in contrast, uses the historical and physical qualities associated with a display to shed light on the purposes of those who placed it. Under the actor-focused approach, the same monument can be constitutional or unconstitutional depending on the motives of the relevant government actors--ultimately, this is a recipe for further confusion and uncertainty over what some have called our "first freedom." (4)
One example of a display-focused Establishment approach is the 1980 case Stone v. Graham. (5) In Stone, the Supreme Court held that Kentucky could not post the Ten Commandments on the walls of its public school classrooms. (6) Although Stone also held that the legislature did not have a valid secular, or nonreligious, purpose for posting the Ten Commandments, the short opinion relied principally on the content of the display as prima facie evidence of the lack of such a purpose. (7)
The strength of a display-focused approach is that it can offer a basis for clear guidelines to public officials because it emphasizes the physical characteristics, placement, and content of the display. The weakness is that adequate guidelines have not been developed to account for the culturally and historically important uses of religious symbols in public spaces, perhaps most notably on the facade of the Supreme Court building itself. …