The Christ Child Goes to Court

Introduction

INTRODUCTION _ Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Alexis de Tocqueville, Democracy in America THE JUDICIARY IN THE UNITED STATES performs an indispensable role in resolving the nation's most difficult problems . History clearly shows that the major questions that claim a position on our political agenda invariably make it to the courts' dockets. This has been especially true during the last halfcentury , when an era of "big government" spawned by Franklin Roosevelt's New Deal raised the stakes in American politics. Conflicts over who should benefit from government's increasing generosity invited disputes that go to the heart of the Constitution . As questions relating to the appropriate balance between majority rule and minority rights became involved in the struggles for political power and favor, the judicial branch of government was asked to provide many of the most important answers. Government policies relating to segregation, sex discrimination, criminal due process, political, social, and economic equality, and freedom of religion are conspicuous among the landmark judicial decisions of the period. Because it is positioned at the highest point in the judicial hierarchy, the Supreme Court is the final arbiter of constitutional struggles. The Court's paramount importance in the areas of civil liberties and individual rights is explained in part by its 3 Copyrighted Material INTRODUCTION / 4 -willingness to confront issues that the elected branches of government and the lower courts have been unwilling or unable to handle. Life tenure provides the justices with an insulated position from which to make the "tough" decisions that their politically vulnerable colleagues in government often choose to avoid. Although the public does not automatically embrace its rulings, few Americans would dispute the fact that the Court is the final authority about the meaning of the Constitution. In some instances the issues that secure a place on the judicial agenda gradually disappear. Court rulings often provide the guidelines that help to solve problems. Many conflicts persist, however. The courts are not always able to devise judicial standards to settle constitutional disputes. Sometimes the failure lies with the political complexity of the controversy. Even the judiciary is not totally immune from the pressures of "ordinary" politics. In other instances the problem is with the peculiar mix of attitudes of the judges. Difficult constitutional issues are quick to bring out the ideological divisions that exist on the bench. More often a combination of both factors impinges on the process when a difficult case is being argued. A troublesome issue for American politics is separation of church and state. Experience taught our founders that religion can be a powerful motivating force that often leads its proponents to enlist the power of the state to propagate their beliefs. History has also taught us that societies which fail to depoliticize religion often generate internally explosive divisions that are potentially self-destructive. For these reasons the Framers of the Bill of Rights put freedom of religion in a prominent position. The First Amendment begins by stipulating that "Congress shall make no law respecting the establishment of religion, nor prohibiting the free exercise thereof." Questions over what constitutes an "establishment " of religion and when the government's interest may prevail Copyrighted Material INTRODUCTION / 5 -over claims of "free exercise" of religion have become more frequent in the era of the welfare state. How much cooperation can exist between church and state without constituting an "establishment " of religion? How much nonconformity must be tolerated to preserve the "free exercise" of religion? In December 1980, the Rhode Island affiliate of the American Civil Liberties Union (ACLU) challenged the constitutionality of the city of Pawtucket's use of taxpayer money to erect and display the Christmas Nativity scene. Because opponents of the practice saw the city's display of the manger as an endorsement of Christianity, the practice was alleged to violate the Establishment Clause of the First Amendment. When matters of faith become a source of public controversy , the emotional conflicts that are produced put a major strain on politics. The ACLU suit precipitated a spirited debate in Rhode Island that raised the divergent traditions, beliefs, and ways of life of its citizens to a prominent place on the political agenda. No matter how familiar the Nativity scene may seem or how small the amount of money involved, the dispute was not trivial. It raised a significant constitutional...