Congressional hearings for a nominated Supreme Court justice have become a sham. I remember watching John Roberts wriggle like an eel, desperate to avoid giving anybody the impression that he might decide the law with a conservative bias. But we all knew he would, and he has. Elena Kagan isn’t exempt: she once argued that potential justices should be fairly open at their Senate vetting, but she changed her mind when she was in the hot seat.
For some years the conservative majority of the Court has systematically enforced a reactionary agenda on our country. What’s almost as disingenuous as the Senate hearings is watching the conservative justices try to sneak Christianity into our government, all the while pretending that the rationale is, after all, purely secular.
Yesterday, Linda Greenhouse, the Supreme Court watchdog for the New York Times, reported on the case of McCreary County v. American Civil Liberties Union of Kentucky. The case involves two Kentucky counties where courthouses displayed the Ten Commandments. Five years ago the Supreme Court upheld a lower court finding that these displays violated the Constitution’s establishment clause. But the vote was only 5-4, and now it’s very likely the vote would go the other way. And the McCreary case is back again. Greenhouse discusses the issues, and the very real possibility that the Court, by allowing the displays, would chip away at the wall between church and state in America.
Fig. 1. The McCreary County display. As Greenhouse reports, “Faced with a lawsuit, they retooled the display to make the Commandments part of a bigger collection of documents, most of which happened to be religiously oriented, including the national motto, “In God We Trust,” and a statement by Abraham Lincoln that “the Bible is the best gift God has ever given to man.”
Too see how the majority might rule this time, have a look at how, in his 2005 dissent, Antonin Scalia argued that the government is indeed entitled to favor religion over nonreligion:
Nor have the views of our people on this matter significantly changed. Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer “God save the United States and this Honorable Court.” Invocation of the Almighty by our public figures, at all levels of government, remains commonplace. Our coinage bears the motto “IN GOD WE TRUST.” And our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.” As one of our Supreme Court opinions rightly observed, “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952), repeated with approval in Lynch v. Donnelly, 465 U.S. 668, 675 (1984); Marsh, 463 U.S., at 792; Abington Township, supra, at 213. With all of this reality (and much more) staring it in the face, how can the Court possibly assert that “ ‘the First Amendment mandates governmental neutrality between … religion and nonreligion,’ ” ante, at 11, and that “[m]anifesting a purpose to favor . . . adherence to religion generally,” ante, at 12, is unconstitutional? Who says so? . . .
Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as Marsh v. Chambers put it, “a tolerable acknowledgment of beliefs widely held among the people of this country.” Id., at 792. The three most popular religions in the United States, Christianity, Judaism, and Islam–which combined account for 97.7% of all believers–are monotheistic. See U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2004—2005, p. 55 (124th ed. 2004) (Table No. 67). All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. See 13 Encyclopedia of Religion 9074 (2d ed. 2005); The Qur’an 104 (M. Haleem trans. 2004). Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population—from Christians to Muslims—that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.
I really do believe that religion is on the wane in America, and that this process is helped along by public pronouncements of atheism and criticisms of religion. But religion won’t go gentle into this good fight. Cases like McCreary are part of religious America’s pushback against what they see as a fatal erosion of values.