Hope in Van Orden
In the second Ten Commandments case, Van Orden v. Perry, Chief Justice Rehnquist (along with Scalia, Thomas, Kennedy, & Breyer) held that a Ten Commandments monument on the Texas State Capitol grounds did not violate the Establishment Clause. This decision, inapposite of the Court’s result in McCreary, endorses a proper understanding of the historical religiousity that should govern Establishment Clause interpretation.
Van Orden recognizes what McCreary did not:
[T]he Ten Commandments are religious–they were so viewed at their inception and so remain . . . And the Ten Commandments have an undeniable historical meaning. . . . Simply having religious content or promoting a message with a religous doctrine does not run afoul of the Establishment Clause. See Chief Justice Rehnquist’s opinion, page 11 (emphasis mine).
Recognizing both the historical influence and religiousity of the Ten Commandments (in Rehnquist’s words “a dual significance”), Rehnquist found the Ten Commandments display a permissible religious acknowledgment.
Despite the jaggedness of three concurrences and one majority opinion, Van Orden creates a sense of promise and hopefulness that the Establishment Clause jurisprudence will again return to a more originalist and constitutional approach, rather than an ad hoc determination based upon the religious preferences of the individual Justices.
Justice Scalia, in his concurrence argued for the adoption of
An Establishment Clause jurisprudence that is in accord with the Nation’s past and present practices, and that can be consistently applied–the central relevant feature of which is that there is nothing unconstitutional in a State’s favoring a religion generally, honoring God through public prayer or acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments. See Justice Scalia’s concurrence, page 1 (emphasis mine).
Hopefully, the U.S. Supreme Court Justice who replaces O’Connor will bring with him or her an originalist understanding of the Establishment Clauses like Scalia’s. If so, Van Orden will not only safeguard Ten Commandments monuments, but bolster the historical underpinnings of our Nation that respect religion, rather than demean and sequester it from the public’s eye, burying any recognition of the historical, judicially enshrined falsehood called “separation of church and state.”