Church, State, and the Crisis in American Secularism

5 The Establishment of Higher Law

97 The last chapter ended at the limits of Establishment Clause jurisprudence .ThecurrentlawoftheEstablishmentClauseallowswide-ranging use of God-language in government displays, creeds, and events, at least outside of special contexts, like schools, in which coercion is a particular concern. Thus the national motto “In God We Trust” is constitutional, the Pledge of Allegiance is constitutional, legislative prayers are constitutional , and prayers at public ceremonies are constitutional. Biblical images are also generally constitutional. Ten Commandments displays and oaths of office sworn on the Bible will be upheld, especially if the government is silent as to why the Bible or a biblical reference is being used. While a majority on the Supreme Court has not adopted any one explanation as to why this array of public religious imagery is constitutional , the outcomes of these types of cases seem unlikely to change in any important way. The majority that supports the presence of this religious imagery in the public square is composed of Chief Justice Roberts and Justices Alito, Breyer, Kennedy, Scalia, and Thomas, although their commitments differ in degree. On the other side, Justice Ginsburg seemsopposedtomostofthis.NoonecanbesureofJusticeSotomayor’s overall approach to religious imagery in the public square, but, judging by her decision to join Justice Stevens’s dissent in Buono, she is probably no more open to it than was Justice Souter, whom she replaced. Justice f i v e The Establishment of Higher Law 98 Using Government Speech and Higher Law Stevens’s replacement may oppose all government use of religious imagery , but is unlikely to do so as determinedly as did Justice Stevens. As the reader can see, an alteration in personnel on the Supreme Court of one justice, or even two, is probably not going to change this lineup very much in the near future. So this is our constitutional law, at least for now. In chapter 2, we looked at the destructive political consequences of the Supreme Court’s drift without explanation in Establishment Clause jurisprudence. What is needed to bring peace to the field of church and state is an answer to the Establishment Clause crisis that the American people can accept. It is especially divisive to proclaim neutrality while at the same time practicing government religious expression. We need a clear judicial statement of the legitimate role of religion in government policy that pays homage to our history, our current beliefs and practices, and our diversity. In this chapter and the next, I try to formulate such an answer to the Establishment Clause crisis. This chapter begins that process with a more or less nonreligious question: can the government establish higher law in the public square? Once that question is answered affirmatively, I turn in the next chapter to the more controversial question of whether government may use religious imagery to do so. We start by returning to the Robert Cochran story in the introduction . As a law student, he was brought by his professor of jurisprudence to the front of Clark Hall at the University of Virginia. The inscription at the entrance to the building called on those who study law to “promote justice” in their legal careers. Inside the building, in a very noticeable placement,weretwomurals,oneofMosesandtheTenCommandments and the other of Greek philosophical debate. For Cochran, these images “seemed to represent the higher aspiration of the law,” and in particular, these images represented the aspiration of law to serve justice. Nowimaginethattheimageof MosesandtheTenCommandments was not present. Imagine that the university, perhaps out of sensitivity to the feelings of its nonreligious and non-monotheistic students, had carved the same message about justice on the front of the building, but had put up only one mural, that of Greek philosophical debate. Would it be constitutional for the university to do that? The Establishment of Higher Law 99 The University of Virginia is a public university. Thus, in my example ,thegovernmentwouldbedisseminatinganinspirationalmessage of a nonreligious type, or at least of a not obviously religious type. No one doubts that Cochran read the message in the way it was intended to be read—that lawyers should serve justice. The question is whether the government may send messages communicating ideas of this kind. The answer to this question is yes, the government may do this. In this chapter I will present the constitutional-law context that supports this kind of speech by the government. GiventhatCochranwasastudentatauniversity,thereadermayfind theveryquestionanoddone.Howcouldauniversity,orindeedanyeducational entity, not communicate with its students on a whole range...