Here is the Kentucky 10 Commandments case, and here is the Texas case. I have read some of this and skimmed some of it. Scalia is a better writer than Souter, and historically probably he is right. In constitutional law, the separation of church and state doctrine is not much more than 50 years old. I generally like the doctrine, myself—I am not religious—but it is a 20th century invention. Like the transformation of the commerce clause in the 1930s, the changing of the establishment clause in the 1940s was a de facto amendment of the Constitution by the judges--a practice I don't like.
I am also wary of the idea that we have to exclude religion from everything touched by government. I remember a case when it was included in the public schools in a deep but reasonable way. In 8th grade at Meadowdale Junior High, Lynnwood, my English teacher, Rex Crossen, got interested in religion. He made the following deal: Any of us could bring in our minister, rabbi or priest, and that person could have a full hour to explain his faith. We started with the Mormons. An LDS minister came in, and the teacher left—went to the library—and the preacher had us for an hour. We had a Nazarene, a Catholic, and I don’t know what all. There were no Jews in our class, so we had a field trip to Seattle. We visited the Russian Orthodox church near the Seattle Times. We spent an hour at a synagogue with Rabbi Levine, who made the best impression on me of any of them. (I don’t think we had a Muslim, but probably it would have been difficult to find one in 1964.) We also had debates in class between a theist and an atheist on the existence of God. It was wonderful. It was the most memorable class I had in that school. And it would probably be forbidden today, though it was not an establishment of religion.
I am also skeptical of the claim, which I hear from liberals, that the conservatives now in power are trying to set up a theocracy, or make Christianity official—acts which are clearly unconstitutional. It seems to me it’s more the other way around—that liberals are going about trying to erase all public signs of religion. See our story of the 10 Commandments outside the courthouse in Everett. They have been there since 1961, at the beginning of John Kennedy’s administration. (Was the Kennedy administration theocratic?) They have been there 44 years, and now, suddenly, we have to defend ourselves from them. The liberals do have a point about displays of religion on courthouse grounds, but it’s a small thing. I have been to that courthouse several times, and I never noticed them.
I guess under the court’s rulings they can stay outside, but a posting of the commandments inside the courtroom is forbidden. Whatever.
Final note: Right near the Seattle Times is Denny Park, Seattle’s first park. In that park is a bust of Mark Matthews, a Methodist minister who played an historic role in early 20th century Seattle. He was a political figure but also a very religious one, as I discovered when I read a biography of him and reviewed it for the Times. Like much statuary, the bust was not paid by public funds, but by a private group; still, when it was placed in the park in 1942, there were people who didn’t approve of it. Those people lost, and the bust was placed. It is still there. Should Seattle take it down?
I am no fan of Matthews, but I would leave it there.
Respond to Bruce.