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The U.S. Supreme Court this fall agreed to hear a pair of cases testing the constitutionality of displays of the Ten Commandments on government property. The justices will reconcile conflicting lower court rulings concerning the display of a six-foot-tall monument on the grounds of the Texas State Capitol in one case and framed copies of the commandments on Kentucky courthouse walls in the other. The two cases — Van Orden v. Perry and McCreary County, Ky. v. ACLU of Kentucky — present legitimate differences: The Texas monument is part of a “collection.” The Kentucky “collections” sprung up to protect the framed commandments. The Texas monument has stood for decades in a “museum-like” setting. The Kentucky displays went up in recent years in the courthouses. But underlying all these details is a profound problem: a tendency to disregard the religious in our religion cases. TCHOTCHKES FOR GOD Having avoided this issue for decades, the Court must now re-examine the carnage left in the wake of its batty establishment clause jurisprudence — a line of cases effectively holding that it’s OK for the state to erect Christmas crèches and such on public property so long as the number of Santas to SpongeBobs in the manger is roughly equivalent. Lower courts have taken the religious display cases to mean that it’s fine to display the Decalogue so long as it’s lost in a clutch of other “historical” documents. Copies of the Magna Carta, the Declaration of Independence, Christopher Columbus’ traveler’s checks — all this stuff somehow immunizes a religious display from endorsing or advancing religion, perhaps because all that clutter endorses and advances only headaches. Across the land, courts have upheld religious displays using what Justice Anthony Kennedy once dubbed “the jurisprudence of minutiae” — the theory that public land becomes more like a museum if you’ve amassed enough tchotchkes for God. But this constitutional compromise only ensures that both sides will be offended: Atheists are still affronted that the state is promoting any religious symbols; believers are annoyed that cherished icons are awash in a sea of knickknacks. The same duality will be apparent in the arguments advanced by each side of the Supreme Court debate. Next year, we will witness oral advocates arguing before the high court — with a straight face, mind you — that the Ten Commandments possess absolutely no spiritual significance for anyone; that they are purely historical artifacts. And precisely as they intone this constitutional equivalent of the philanderer’s mantra (“She means nothing to me, honest!”), angry citizens on the marble plaza before the Court will be waving signs saying, “Put God Back Into Government” and “Yahweh or the Highway.” By the same token, atheists and civil libertarians on the other side — folks who have survived decades of Sunday school and reruns of CBS’s “Touched by an Angel” — will insist, in Court and out on the plaza, that even a passing glance at “Honor Thy Father and Mother” will either turn their children into mad evangelicals or open the door to a lifetime of religious persecution and ostracization. THOSE WHO REALLY CARE The trick to these religion cases — and it’s a trick the Court has thus far refused to acknowledge — is that these issues matter most to people for whom religion is a huge big deal: to the profoundly religious who revere these symbols and to those who fear them in equal measure. That means that for the handful of people, the Judge Roy Moores, who deeply believe one look at the commandments will curb juvenile delinquency, this issue is about religious freedom — freedom to worship and proselytize. In their view, the wall between church and state amounts to a heckler’s veto that undermines their most cherished and urgent right: to make God a part of daily life in America. On the other hand, the die-hard civil libertarians and atheists, the Michael Newdows of the world, don’t see the commandments or the Pledge of Allegiance as some quaint relic or harmless piece of “ceremonial deism” that should roll off their backs like the all-xylophone “Jingle Bells” at Rite Aid. It’s the state coercing them (or, in Newdow’s case, his child) into worship and the beginning of theocracy in America. There is no point in telling each side to chill out, either. No point in asking the religious to confine their worship to churches and synagogues. And no point in asking atheists to turn the other cheek and disregard these trivial forms of state-sanctioned religion. This is why the Court’s tests for religious establishment — tests that measure how a neutral or reasonable observer might perceive a religious display — make absolutely no sense. When it comes to questions of religion, there is really no such thing as “neutral” and little chance of finding a “reasonable observer.” People who either love or loathe religion are not neutral on the subject. They are quite reasonably offended by its forcible promotion at the hands of the state, and equally so by its banishment. This is not an area of law in which we should be polling neutral observers; they are not the people about whom the Constitution is worried. MUST THE WALL STAND? What, then, would a truly honest discussion of the Ten Commandments and other establishment clause cases look like? What if we could rewind constitutional history and erase the idea that the folks promoting religion in these cases are actually pushing secular historicism or ceremonial deism? (After all, some American law also has roots in the Napoleonic Code, but we’re not clamoring to erect courthouse monuments to Napoleon.) What if we could concede that Chief Justice William Rehnquist was right in his dissent in a public prayer case when he noted that the majority opinion “bristles with hostility to all things religious in public life”? The concession would force us to answer the normative question: Is anything other than hostility to religion available under current jurisprudence? It would force us to determine whether we want powerful religious symbols in public spaces, rather than defining the problem away by theorizing that those symbols have little or no religious meaning. Such an acknowledgment would force the Court to go back and tackle the real question animating these religion cases: Does the Constitution truly erect a “wall” between church and state, or is this, as most citizens maintain, a politically correct overcompensation? Was the intent of the Framers to quarantine all religion from the public square, or was it merely to keep the state from enshrining a single state religion? Is the possibility of a theocracy really viable enough to justify near-silencing of a passionate and vociferous religious majority? These are useful and important questions, and well worth the high court’s time and consideration. Whether the commandments are secular or religious, whether they can be inoculated against giving offense by an artful display of Franklin Mint figurines, and whether a reasonable observer (if one is left in this land) would be offended by them are not only trivial points. They also offend the American public, who deserve a real and enduring answer to these questions. Dahlia Lithwick is a senior editor and U.S. Supreme Court correspondent for Slate . This article first appeared in the December issue of The American Lawyer , an ALM magazine.

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