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After a talk several years ago, the late Chief Justice William Rehnquist fielded a question about the First Amendment’s Establishment Clause, not from a legal scholar but from a pugnacious social worker. My mother asked, “If we have a separation of church and state, how can we have a National Christmas Tree?” His reply: “It’s tradition.” His message: Lighten up. Fast-forward to today. Judge John Roberts Jr. is poised to replace Rehnquist, and President George W. Bush will nominate another replacement for Justice Sandra Day O’Connor. So, for the next several decades, what strand of conservative thought prevails on the meaning of the Establishment Clause becomes all important. If confirmed as chief justice, Roberts could effectively push the Court to choose among the various positions advanced by Republican justices, whether it be O’Connor, Rehnquist, or Justice Antonin Scalia. SWINGING RIGHT O’Connor has said that the Constitution requires a firm separation of church and state. In June 2005 she concurred in McCreary County v. American Civil Liberties Union, which held unconstitutional two Ten Commandments displays in Kentucky courthouses. Noting the “violent consequences” of sectarian regimes, she challenged those “who would renegotiate the boundaries between church and state” to explain why they would “trade a system that has served us so well for one that has served others so poorly.” Whatever the merits of O’Connor’s position, it seems unlikely to find a champion in Roberts. Recently released memos provide ample evidence that Roberts believes the Supreme Court has been too strict in policing government involvement in religion. One memo labeled “indefensible” a 1985 ruling striking down a moment of silence in public schools. Another memo explained that Roberts had “no quarrel” with a speech by then-Education Secretary William Bennett criticizing the Court’s Establishment Clause cases, including Stone v. Graham, a 1980 decision holding unconstitutional Ten Commandments postings in Kentucky’s public schools. Roberts wrote that he agreed with Bennett’s point that such cases “betray a hostility to religion.” Therefore, if Roberts is confirmed to the Supreme Court, secularists seeking to challenge public religious displays on First Amendment grounds should prepare to be disappointed. (Mom, if you are reading this, the National Christmas Tree is here to stay.) LIGHTEN UP If not with O’Connor, where will Roberts and his Court come down on the Establishment Clause? Two possibilities present themselves in recent opinions. The first, exemplified by a recent decision by the U.S. Court of Appeals for the 4th Circuit (and by Rehnquist’s response to my mother), tells litigants to lighten up. The second, exemplified by Scalia’s dissent in McCreary County, tells certain litigants that they don’t count. Last month a divided 4th Circuit panel rejected a Virginia parent’s challenge to the phrase “under God” in the Pledge of Allegiance. Myers v. Loudon County Public Schools held that, although the phrase was “[u]ndoubtedly” religious, overall the Pledge is still a “patriotic activity.” The court found it “far-fetched” to suggest that the phrase is coercive or that allowing it to remain in the Pledge would lead to more serious government sponsorship of, or involvement in, religion. Thus, the threat supposedly posed by the Pledge was “mere shadow” — and, consequently, litigants afraid of this shadow should relax. Even those who favor a thick wall between church and state should acknowledge that Myers has a point. The government’s long history of religious acknowledgments does not necessarily justify them, but does tend to defeat arguments that such acknowledgments trigger further erosion of church-state barriers. Consider Van Orden v. Perry, a case decided on the same day as McCreary County, which upheld the constitutionality of a Ten Commandments display on the Texas State Capitol grounds. A concurring Justice Stephen Breyer observed that the Texas display had sat for 40 years without triggering a legal challenge or creating an atmosphere of intimidation. Partly for this reason, Breyer concluded that the Texas display was constitutional, while the Kentucky displays, which triggered immediate opposition, were not. Even last week’s Pledge of Allegiance decision by a U.S. district judge in Sacramento, Calif., carefully distinguished policies that effectively coerce children to recite the Pledge from the 1954 law that inserted an acknowledgment of God into the Pledge. While the judge concluded that he was constrained by a 9th Circuit decision to rule that the school district’s recitation policies violated the Establishment Clause, he rejected challenges to the federal statute. Indeed, other efforts to chip away at the wall between church and state can hardly be traced to influence or coercion by public acknowledgments of God. Ten Commandments displays did not lead to the enactment of voucher programs that cover religious schools nor to the Court’s 2002 decision in Zelman v. Simmons-Harris upholding such programs. And the current movement to teach “intelligent design” in public schools is due not to the coercive power of the Pledge but to the political power of conservatives. Public acknowledgments of God are not gateway establishments. Moreover, telling citizens to lighten up — as the 4th Circuit did in Myers — is not necessarily callous or disrespectful. Liberal democracies do it all the time. Our government frequently resolves disputes about symbolic conduct by, in effect, asking some citizens to accept government support of conduct that offends them. This happens in the case of public funding for art that some consider offensive or, increasingly, public recognition of marriages that some consider immoral. Certainly, these examples are not identical to the Establishment Clause context, and “lighten up” is not the best response to every complaint about controversial, symbolic conduct. There are constitutional limits on what the government can say about God. But because telling citizens to lighten up happens so frequently, telling one particular litigant to lighten up does not necessarily denigrate that litigant’s place in our democracy. YOU DON’T COUNT Scalia’s McCreary County dissent, however, effects exactly that type of denigration. Like the 4th Circuit in Myers, Scalia’s dissent concluded that “governmental invocation of God is not an establishment.” But unlike the Myers majority, Scalia did not simply tell those who would challenge public invocations of God that their concerns are overblown. He told certain people that their concerns are irrelevant. Scalia wrote, in particular, that government is perfectly entitled to “disregard” those whose religious beliefs are outside the mainstream, including “polytheists,” “believers in unconcerned deities” and (you guessed it) “devout atheists.” Although Scalia explained that he intended his analysis to apply only to “public acknowledgment of the Creator,” he provided no limiting principle explaining why people who can be disregarded in one context cannot be disregarded in others. The McCreary County majority called his dissent a “surprise” — as, indeed, it must have been to anyone under the impression that our government must respect the views of Christians, atheists and polytheists alike. “Today’s dissent,” Justice David Souter wrote, “apparently means that government should be free to approve the core beliefs of a favored religion over the tenets of others, a view that should trouble anyone who prizes religious liberty.” Whereas public religious displays acknowledging views that many Americans cherish might have the effect of making others feel like outsiders, Scalia’s dissent seems to say that holders of minority religious views are definitely outsiders. PLEASE, NOT SCALIA If successors to O’Connor and Rehnquist do entrench conservative Establishment Clause jurisprudence, then liberals and conservatives alike should root for the “lighten up” version to prevail and for Scalia’s version to die out. The former at least tries to identify and bar significant establishments of religion, while the latter seems inclined to countenance significant establishments that find support in the majority’s religious tenets. Even if jurists applying these two approaches were to reach identical conclusions about what conduct the Establishment Clause proscribes, jurists subscribing to Scalia’s approach would needlessly demean the citizenship of those with disfavored religious views. Scalia could have limited his dissent to the assertion that acknowledgments of God simply don’t amount to establishments. Instead, he wrote an opinion that, in certain respects, is more offensive to First Amendment values than the Ten Commandments displays it scrutinized. Imagine if courthouses began posting the following statement: “If you are an atheist, a polytheist or a believer in an unconcerned deity, you are disfavored.” That’s an awful thing to say to American citizens. By contrast, what Rehnquist said to my mother wasn’t half bad. Matthew R. Segal is an associate in the D.C. office of Goodwin Procter.

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