So we in Texas get to keep our Ten Commandments monument — all six feet of it, reposing quietly on the State Capitol grounds — whereas two Kentucky counties have to remove the Big Ten from their courthouses. And blamed if I can see why, but, then, blamed if anyone this side of the barred windows in the state institution for the mentally incapacitated can ever see what the U.S. Supreme Court means when it defines religious "entanglement" under the First Amendment.
Oh, we can read the decisions all right — two of them this week. We just can’t tell what they mean or how to apply them. Almost 60 years into the business of adjudicating church-state relationships, the court can write and perform only farce.
I am here to suggest we’ve brought this on ourselves — for reasons I will get to presently.
A secular-minded Supreme Court — such as we’ve had for the past half century, during which time the learned justices have thrown out prayers in schools, prayers at commencement exercises, prayers at football games, nativity scenes on public property, crosses on public property, etc. — has slapped religious Americans in the face with wet towels. Yet it seems to lack the courage of robust conviction. Disliking the notion of religion in public life, the court can’t bring itself to padlock God from the public square. And so it goes on closing one door while leaving another partially cracked. Everything on a case-by-case basis!
What a mess — one increasingly typical since the court’s 1962 decision disallowing a bland prayer of thankfulness used in New York public schools. The court is making this thing up as it goes.
There doesn’t seem at this point the slightest use of waiting on a court in Washington, D.C., to sort out the relationship of God to those who perceive themselves to be God’s people. In due course, one or two Supreme Court justices will retire, and a storm of talk will ensue concerning whether X or Y nominee to the court will begin to turn around church-state jurisprudence.
And, well, what if in 10 years a reconstituted court does proclaim the right of a county to display the Mosaic law? It strikes me — correct me if I am wrong — that cultures, not courts, set constitutional tone; that the incoherence of our church-state jurisprudence proceeds less from the court’s incoherence than from society’s unwillingness to say what its own will is.
I can recall old Everett Dirksen, the organ-toned senator from Illinois, working his colleagues, again and again, for ratification of a constitutional amendment to allow school prayer. The culture didn’t care deeply about having such an amendment; and so it failed, again and again.
Our eyes are on the high court as we look for the remediation of past abuses committed by the court. We might more fruitfully broaden the angle of vision, looking to the society that supports the court that hands down the church-state decisions and the politicians who appoint and confirm that court’s members, as well as to those who write the books and editorials, compose the music, teach the seminars, make the foundation grants, yes, even preach the sermons in fashionable churches. We generally don’t call these folk highly religious; we usually call them secular.
There’s been a social breakdown around here — not to the advantage of those who believe prayer is a useful addendum to public discourse. We’re not totally secular. Didn’t Billy Graham wow ’em in New York City last week? It’s merely that religion — such is the backwash of the 60s — often seems less central to national purpose than it used to seem. Into this environment barges the Supreme Court, engraving our doubts in marble without making at all clear just what we are to aim at — some God, no God, just enough God? And how much is "enough"?
Incoherent the Supreme Court’s First Amendment jurisprudence may be. Incoherent is likewise the way to describe the American people’s attitude toward the religious tradition on which their nation was founded.