Friday, July 15, 2005

Are We Left With Five Commandments?

The Supreme Court's split Ten Commandments decision is a case of bad law making for good politics. Each side in America's intensifying religion wars got half a loaf, losing only part of what it wanted to achieve. It's hard to get exercised over half a loaf. For the moment, Justice Breyer's extralegal dexterity put a damper on further bitterness, leaving the court with four Justices who believe strongly that Ten Commandments displays in public places are without question acceptable and four Justices who believe strongly that all public displays are not constitutionally kosher. The country is left with no coherent standard. Likely, there will be much additional litigation because there are thousands of displays around the country and thousands of folks who do not like them.

Inconsistency is usually the rule in church-state litigation and it probably could not be otherwise. Religious institutions, including houses of worship and schools, are active forces in the communities where they are located. They involve tens of millions of persons and inevitably there is the intertwining of the sectarian and the secular. Whether the White House and Congress are in liberal or conservative hands and whatever the ideological make-up of the Supreme Court, billions of dollars flow from governmental coffers into the accounts of religious institutions. This isn't going to be changed much by judicial rulings, partly because these institutions conduct activities that governments need to get done and also because for all of the notion of absolute church-state separation, the life of a society is integration and interaction.

In an important sense, the legal battles we have witnessed are mainly symbolic. There are fights over rote language in the Pledge of Allegiance and Ten Commandments displays. Even in these situations, there is a high degree of inconsistency. Our currency proclaims "In God We Trust," as does language in courtrooms throughout these United States. In some instances, judges decide that invocations of God are on their face violative of the First Amendment. In other cases, judges decide the reverse. In the meantime, even advocates of church-state separation wink at more serious situations that should raise constitutional questions. We are, in short, enmeshed in litigation that has symbolic but little practical impact. There isn't a scrap of evidence that anyone's beliefs or practices have been affected by placing the Ten Commandments in the public square.

It may be that church-state warfare is so intense because it is primarily symbolic. People care about symbols, whether or not they influence what they do. Put otherwise, what goes on in people's minds counts for more than what goes on in their lives. Of course, there are times when the outcome of church-state litigation has practical consequences. One example is the perennial issue of aid to parochial schools. There, too, there is a touch of inconsistency, particularly in the political realm. While the Supreme Court has opened the door somewhat for certain forms of aid, from Washington to state capitals and then to localities there is scant desire, even among conservatives and proponents of aid, to exploit the opportunity.

One apparent reason is that aid to parochial schools costs big bucks and governments are reluctant to go down that path. They can pay their dues to religious groups by declaiming about the symbolic, by rallying around the Pledge of Allegiance and Ten Commandments. It also may be the case that in the Bible Belt and elsewhere where the Christian right is strong, there are discrete ways of achieving religious goals in schools - whether they are public or parochial - without being detected on the constitutional radar screen.

Long experience teaches that the Supreme Court will continue to be occupied by church-state litigation, some of it involving the Ten Commandments. What exactly is wrong with their being displayed in public? Is it their being identified as the Ten Commandments? Or their religious content? Or their biblical source? Or perhaps all of these. How would the strict separationists feel if there were public tablets proclaiming five or six commandments? Would they object to a display announcing the obligation to be respectful to parents and saying that it is sinful to commit murder, steal, give false testimony and covet what is another's?

Maybe we can restore the full complement of ten by adding several more from the Bible, including the pursuit of justice, assistance to the needy, respect for the elderly, and ethics in business. We would then once more have Ten Commandments, all with Biblical sources and all with what might be called universalistic or humanistic overtones. I wonder whether there would still be a constitutional issue. Likely, though, there would be litigation, if only because our society is litigious and there are people out there who object to anything with even the slightest religious overtone.

I imagine that there would be plenty of Jews who would object, perhaps also the Anti-Defamation League which filed a brief before the Supreme Court advocating against the Ten Commandments. I guess the ADL believes that getting a lot of Christians angry at Jews is an effective way of preventing our defamation. As I have written previously, this is a strategy that is risky for Israel, undermines liberal causes and ultimately will be harmful to American Jews.

But this is not the way most American Jews see things. We who are still called Jews - a word that denotes a religious identity - are by a large margin intolerant toward religion and this intolerance continues to spread despite the damage that it is doing and despite the growing number of voices, including among liberals, calling for a more accepting attitude toward religion. We have corrupted the ideal of our being a chosen people. What we now seem to be chosen for is first place in the ranks of those who detest religion.