By Rebecca Sager and Keith Gunnar Bentele
This August marks the 10-year anniversary of Alabama Chief Justice Roy Moore’s suspension for refusing to comply with a federal court order to remove a display of the Ten Commandments from the Alabama Supreme Court building. Judge Moore, rather famously, erected the statue in the middle of the night and created a controversy that stirred up emotions about what role religion should play in our public spaces. Since Judge Moore’s stealth attempt to insert the Ten Commandments into the hallowed halls of the Alabama Supreme Court building, the US Supreme court has attempted to determine when a religious display is constitutional, and when is it not.
The first time the Supreme Court addressed the issue of religious displays was in 1980 when Kentucky installed the Ten Commandments in public school classrooms. They ruled that this type of display was indeed unconstitutional and violated the Establishment Clause of the First Amendment, which states that government shall make no law establishing, or favoring one religion over the other. Since this decision the rulings by both the Supreme Court and the lower courts has been unpredictable and varied. For example, in 2005 the Supreme Court ruled that a 40 year old Ten Commandments display in Texas was constitutional, but a similar newer display in Kentucky was not.
As in the Texas and Kentucky cases, much of the reasoning behind these decisions has rested on the idea of whether or not a display could be considered historical. So far the conclusion the Supreme Court seems to have come to is—if the religious display has been there for a long time then it’s fine to stay, but if it is not a historical object that has been there a long time, then this type of display in public places is unconstitutional. In short, if it’s covered with dust and set-up by your great-grandfather it can stay. If you put it up in a public space as a political and religious statement knowing that these objects are now seen as overtly religious, you will probably be taking it down.
So the tricky part is, what makes a display historical in the eyes of the Supreme Court? This uncertainty in how the law can be interpreted, along with the religious ideology that influences the decisions made by many elected officials, has meant that the controversy surrounding these objects lives on, along with the attempts to put up new displays. In fact, at the state level there has been a great deal of largely unnoticed legislation governing these types of displays, as well as other state laws that attempt to breach church/state separation. The passage of 33 state-level laws providing overt support for displays of religious symbols in public settings between 1995-2009, is simply one component of a larger trend in which there has been increasing passage of what we refer to as “religious inclusion legislation”. The passage of these types of laws, as well as new displays put up by state officials, might not be such a surprise when one realizes that most people support such displays. Two different Pew Center studies conducted in 2005 found that 83% of Americans said displays of Christmas symbols should be allowed on government property and 74% of Americans said they believe it is proper to display the Ten Commandments in government buildings.
In an analysis examining which states passed more religious inclusion legislation during 1995-2009, we found that states with more conservative state legislators, larger proportions of evangelical congregations, and a stronger influence of the Christian Right in state Republican Parties were more likely to pass legislation increasing the inclusion of religious considerations and practices into public life. Such legislation seeks to test the limits of church-state separation or intentionally seeks to fashion a new regime of closer church-state interaction. These polices represent the successes achieved by a resurgent conservative evangelical movement whose ultimate goal is to create a new regime of church state relations in which the government may play a role in promoting or facilitating religious expression. This specific conception of the role of religion in public life is very different from the separation that many currently view as a core American principle.
While these analyses only cover up to the year 2009, attention to such issues has become increasingly important following the massive increase in both the proportion of Republican state legislators and the number of state houses under Republican control following the 2010 Republican wave election. These new laws mean that the issue of religious displays will not disappear anytime soon. In fact, the numbers and types of displays are likely to increase over time, ensuring that the battle over the proper interpretation of the First Amendment’s Establishment Clause will continue.
Rebecca Sager, Keith Gunnar Bentele, Gary Adler, and Sarah A. Soule are co-authors of “Breaking Down the Wall Between Church and State: State Adoption of Religious Inclusion Legislation, 1995-2009” (available to read for free for a limited time) in the Journal of Church and State. Rebecca Sager is an Associate Professor of Sociology at Loyola Marymount University in Los Angeles. Professor Sager’s research focuses on the intersection of religion, policy, and social movements. She has published several pieces on the Faith-Based Initiative and church/state issues in various research journals including the Journal for the Scientific Study of Religion and Non-Profit Voluntary Sector Quarterly, and most recently her book, Faith, Politics, and Power: The Politics of Faith-Based Initiatives examined early state implementation. Keith Gunnar Bentele is an assistant professor of Sociology at the University of Massachusetts Boston who studies public policy and inequality. Much of his research examines the factors shaping policy outcomes in US state legislatures, with particular attention to the influences of social movements and political ideology. In particular, he has focused on the consequences of welfare reform, rising earnings inequality in the U.S., and the passage of multiple types of state legislation sought by the conservative Evangelical movement.
The Journal of Church and State seeks to stimulate interest, dialogue, research, and publication in the broad area of religion and the state. JCS publishes constitutional, historical, philosophical, theological, and sociological studies on religion and the body politic in various countries and cultures of the world, including the United States.
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Image credit: A controversial tablet displaying the Ten Commandments, located on the grounds of the Texas State Capitol (behind the capitol building) in Austin, Texas, USA. Public domain via Wikimedia Commons.
Actually, the first amendment to the US Constitution states that “Congress” shall make no law…not government. For most of the history of the US, this was understood to bind only the federal government, not the states. Indeed, here in Massachusetts, the Congregational Church, successor to the Puritans, was a state church until 1820. The extension of the first amendment to cover state actions happened later and on has dubious legal standing.
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