Public Displays of Religion

In response to the Alabama/10 Commandments flap which I blogged in “God and Man In Alabama” and “Moses Supposes“, Donald Sensing put up 2 thoughtful posts.

In the first, he challenges the parties to the decision to answer a set of thought questions designed to explore the boundaries of whether the State can honor God. In the second, he challenges the supposition that no state-favored display of religion is possible by pointing to the statue of Athena placed in a park.

I’m going to leave the first alone as more of an issue for Lawrence Solum or one of the Volokhs; but I do want to talk about the second.
In one of my comments to ‘Moses Supposes‘, I said:

I’ve always been irked at people who challenge Nativity displays or menorahs in parks, because I find that to be well within the tradition of ‘reverence’ I talk about above. Other, similarly celebratory expressions don’t bother me at all.

But to put it in the courthouse (or the legislative chamber) says to me that this law isn’t the law of the State, but the law of God, and at that point I start to itch pretty badly.

And that pretty neatly wraps my position; I think we should encourage public displays of reverence … of all kinds, including the occasional statue of Gautama and even Ganesha. Clearly there are some lines; I’d rather followers of the houdoun don’t slaughter goats in public parks, and believers in Bacchus hold their bacchanals on private property.

Now, in truth, some of these have become secularized through use over the years – Athena in most architectural art represents a generalized ‘wisdom symbol’, and there are no living worshippers at her temples as far as I know.

But displays tied to living religions must be carefully separated from the power of the state. I don’t want to walk into a courtroom and see a Torah, or a Gohonzon. Judges are certainly free to keep them in their chambers, or keep them on their person, but to display them as a part of the fabric of the building, or of the institution, is to imply that the fabric of the law is tightly bound with a religious – as opposed to cultural – doctrine. That is to me deeply offensive.

Believers and nonbelievers may come to the state capital and do business. Animists and Episcopalians alike may come to City Hall and get their zoning ordinances, and I think that anything that suggests otherwise needs to go.

So parks and public squares – sure! Courthouses, legislative chambers, city halls – nope. To me, there is a clear difference, in that there are many parks, which may embrace many historic or cultural or religious themes. I’m free to work to get my hero, god, or symbol incorporated into one.

But the instruments of state power cannot be escaped. And anything that suggests that they favor one religion or culture or group over another – that we are not all equal before the majesty of the law – is wrong.

7 thoughts on “Public Displays of Religion”

  1. So, if I read this right, you’re saying nativity scenes, menorahs, et. al. are broadly OK in public parks and such, but the line to be drawn is around instruments of state power and authority.

    I’d happily go along with that position. If adopted broadly, it would remove much of the discomfort many moderate U.S. believers currently have – that “separation of church and state” has become a war AGAINST all public manifestations of their belief, BY the state.

  2. A.L., that does indeed seem to be eminently sensible.

    BTW, I posted my concluding thoughts on the whole kit and kaboodle. In short: Commandments, no; statue, yes.

    Joe may be interested as well that I reached into Jeremiah for some legal guidance on this issue, not Exodus.

    Thank you for the links and the discussion!

  3. Those parks might get pretty crowded once all those ‘other’ religions get in on the act. Then we’ll have to have court battles to determine where all those menoras, creches, buddhas, crecents, shivas go: menoras next to the Civil War memorial, nativities on the left near the gate, buddhas in the back corner near the fountain…

    I think if you want public displays of your particular religious symbols, pool your money; buy a piece of land; put up your statues. No government establishment, no government prohibition.

  4. It’s nice to be comfortable.

    I’d be comfortable if people, when debating this issue, would provide a Constitutional basis for their conclusions. I’m no lawyer, and most of us discussing this are not either, but you don’t need to be one to ascertain the meaning of such a document, clearly written for “the people”, not for the lawyerly brethren, as today’s laws tend to be. In addition, any discussion of First Amendment issues that doesn’t use as it as the starting point is basically useless, wouldn’t you agree? I mean, what is the point? Come up with all the rationales you like, then throw them away when you have to enter the courtroom to argue the case.

    People wiser than we decided this issue 216 years ago: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof … “

    I suppose I sound like a smart-ass here, and maybe I am a little bit, but in all seriousness I am dismayed to find the clarity and conciseness of the First Amendment constantly muddled up into all sorts of gray areas. The realist in me always gets back to those 16 words (ha! what a coincidence!) ….

  5. As I keep trying to point out, neither the US nor the Alabama Constitution prohibits the display of religious texts or icons, even when State-sponsored (eg Athena: must try to see that some day), but they do prohibit by implication those displays that show the government and/or its agents will consider certain religion[s] precepts as being above the secular law and giving the right – or even obligation – to overrule or unilaterally extend the law.

    A judge may, for example, oppose abortion on religious grounds and is entitled to have and state such a position and work toward having laws with such a position – but must not call for bulldozing clinics without secular authority, nor refuse to punish those who actually carry out such an action.

    A judge may be a Brahmin, but must not throw out cases concerning the “untouchable” class – though recusal is a possibility.


  6. Please expound on the “prohibit by implication” statement; that sounds awfully squishy.

    I should expand my comment a bit: I’m not against any theoretical arguments that prohibit the display of the Ten Commandments, as long as those presenting them do not rely on the First Amendment or vague platitudes such as “separation of church and state”. Cite the process of judicial review and the decisions that support you, etc. This then moves the discussion into new areas, and can be debated on those merits: is judicial review constitutional, are individual decisions proper, etc.

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