First, what does the Establishment Clause literally mean? That's pretty easy: "Congress shall make no law respecting an establishment of religion" isn't complicated at all. Generations of jurists have taken it, reasonably enough, to mean that our Congress can't institute a national religion along the lines of the "Established Church" of England. Until the latter half of the 20th century, that is where matters stood.
Second, how does the Supreme Court of the United States understand the Establishment Clause? Given the maze of tests that the high court has cooked up since Lemon v. Kurtzman, that's a much tougher question to answer. The Lemon Test asks whether the religious practice in question has a "secular legislative purpose," "neither advances nor inhibits religion" and does not foster "an excessive government entanglement with religion." That might seem murky enough-just what does excessive mean, anyway?-but it gets worse. The Court's ever-narrowing, ever-more-creative interpretations of the Lemon Test have allowed the Court over the past few decades to reach decisions that (not-so-coincidentally) hew to the personal preferences of the sitting justices. Judicial activists on both sides of the aisle-Thomas is as guilty as Kennedy-have julienned the Lemon Test to the point that it would take Solomonic wisdom to pull meaning out of the scraps that remain.
Van Orden v. Perry and McCreary County v. ACLU are the Establishment Clause cases currently before the Court, and the oral arguments in both cases are laugh-out-loud funny. Justice Souter riffed on the idea that perhaps the last five commandments-prohibitions against killing, adultery, stealing, lying and coveting-would pass muster in the public square, whereas that tricky stuff about "I the Lord thy God am a jealous God" wouldn't. In response to Souter's clever invention of a Lemon-Certified Quintalogue, Justice Scalia, who is consistent to the point of embarrassment, fairly yelled, "Who are you kidding?" and then lectured the crowd on the unavoidable religiosity of all of the commandments. This might seem consistent with Scalia's religiously-based worldview, but the government was arguing in these cases that the Ten Commandments are not a religious document and Scalia was arguing the ACLU position, albeit reluctantly.
Justice Breyer said flat-out that the Supreme Court just can't make decisions about religious displays, because they're too tricky to handle without a ginger examination of each case by the Supreme Court of the United States, thus making the Supreme Court into the world's most prestigious arbitration panel.
There is exactly no chance that Van Orden v. Perry and McCreary County v. ACLU are going to be decided on the basis of what the Establishment Clause actually says, and there's a strong chance that they will be decided by Justice Sandra Day O'Connor's genius for the expedient. So, maybe it would be better not to waste time thinking about the law, but rather better to think about the consequences of changing the law.
Church and State are positively estranged in the United States, but they need not be. Look at our friends in Germany, the heart of secular Old Europe: Most German citizens pay taxes every year that go directly to state-supported religious denominations. Those payments are called Kirchensteuern, or Church Taxes, and those monies are used to pay bishops, finance seminaries and maintain churches. Lots of German schools are run directly by the Catholic Church, and there's nothing quite as striking as the crucifix that is supposed to hang, by law, in every Bavarian classroom. And the sky, contrary to the fears of American secularists, has not fallen in Germany. German atheists just aren't oppressed in any significant way by state-sponsored religion-just ask Gerhard Schroeder, the atheist Chancellor, or Joschka Fischer, whose marital adventures make Bill Clinton look like Bill Bennett.
Throughout the West, religion is not destructive to public life, and there is no reason to treat it that way. Secular opposition to "government entanglement with religion" is, ironically enough, based on the secular myth that government and religion, like Kipling's East and West, "never the twain shall meet." Thomas Jefferson, originator of the phrase "wall of separation between church and state," didn't object to sermons being held in the Supreme Court. Perhaps those who cite him should consider similar flexibility in lieu of the ferocious opposition to any mixing of God and government that marks their argument. It makes them look, if I may be forgiven the small conceit, a little dogmatic.
Montana can be reached at jmontana08@amherst.edu