How high a wall? The court & religion.

It must have felt strange, even surreal, in the Supreme Court Chamber on March 2, when the justices heard oral arguments in two cases involving government-supported displays of the Ten Commandments: Justice Stephen Breyer wandered on, in law-professor fashion, worrying about the "divisive quality" of such displays; one lawyer asserted that their "powerful religious message" tells Muslim and Buddhist Texans that "it's not their government"; Justice Anthony Kennedy pondered the question whether the Ten Commandments are "super-religious" or just "religious"; and Justice Antonin Scalia thundered that the displays do and may affirm the widely accepted view that our laws and institutions "come from God." All the while, Moses the Lawgiver loomed over the scene from his prominent place in the courtroom's frieze, wondering, perhaps, if he should be troubled by the Ten Commandments carved in the chamber's oak doors.

Activists, law professors, journalists, and talk-show producers are now gearing up for the late-June avalanche of big-issue Court rulings. Last year, the Court decided not to decide the much-debated church-state case that unsuccessfully challenged the constitutionality of the words "under God" in the Pledge of Allegiance. This summer, clearly, Court followers are hoping for something better. In theory, the pending First Amendment cases offer an opportunity to revise--even to rehabilitate--the frustrating Religion Clause doctrines. In fact, though, there is not much chance that things will change. When the Court hands down its decisions in a few weeks, it will still be Justice Sandra Day O'Connor's world, where the outcomes in religion cases seem to depend on little more than her comfort level with the particular policy at issue.

The First Amendment provides that "Congress shall make no law respecting an establishment of religion." Most informed observers would agree that this command, although often misunderstood and ham-handedly implemented, has helped religious faith thrive in the context of American democracy and pluralism. Properly understood, disestablishment reflects a commitment to religious freedom and diversity, not a drive to impose a rigorously "secular" civil society. With all due respect to Thomas Jefferson's memorable but misleading figure of speech, the Constitution does not and could not mandate a "wall of separation between church and state." After all, as Justice William Douglas (hardly a theocrat!) put it, "we are a religious people whose institutions presuppose a Supreme Being."

The challenge, then, is distinguishing permissible recognition and accommodation of religion from prohibited favoritism and entanglement. At present, the Court relies primarily on an "endorsement test," first proposed by O'Connor, to help find this line. Under this approach, judges in church-state cases should ask whether a "reasonable observer"--not an antireligious crank, or a hypersensitive heckler, or indeed any real person at all--would perceive in the challenged law or policy the purpose or effect of "making adherence to a religion relevant in any way to a person's standing in the political community." Of course, this "test" invites at least as many tough questions as it answers: What does it mean, after all, to "endorse" religion? Whose perceptions of endorsement or political standing "count"? And why, exactly, should such perceptions--as opposed to, say, concrete burdens on persons' freedom and conscience--be enough to invalidate democratically enacted laws or widely supported expressions of respect for religion?

These questions are front-and-center in the two Ten Commandments cases. Van Orden v. Perry involves a six-foot-tall stone monument, inscribed with the Commandments and several other patriotic and religious symbols. It is one of seventeen monuments on the grounds of the Texas State Capitol, and was donated more than forty years ago by a private group, the Fraternal Order of Eagles. (The lower court thought it worth pointing out that, in all this time, even in Austin--a community "not lacking in persons willing and able to seek judicial relief from perceived interferences with constitutional rights"--no one had ever objected to the monument in court). McCreary County v. ACLU addresses the fact that local officials in Kentucky decided to hang a framed copy of the Commandments in the courthouse in 1999. A series of legal challenges subsequently prompted several revisions of the display. Now, the Ten Commandments are just one of many texts and documents--along with the Magna Carta, the Mayflower Compact, and the lyrics to the "Star-Spangled Banner"--identified on the Courthouse wall as "Foundations of American Law."

This year's other interesting Establishment Clause case, Cutter v. Wilkinson, has nothing to do with the Ten Commandments, but involves instead a federal statute that, among other things, requires prison officials in Ohio to accommodate the religious beliefs and practices of a professing Satanist. About five years ago, an almost bizarre coalition of legislators and activists pushed through the federal Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). In a nutshell, the Act requires state-run institutions that receive federal money to accommodate inmates' religious beliefs and practices, unless they have a really good reason not to. In contrast, the Free Exercise Clause rarely requires exemptions for religious believers from burdens imposed by generally applicable laws (for example, the government may outlaw the use of peyote, even in Native Americans' religious rituals), and it gives particularly generous leeway to prison officials.

Now, there is a lot more going on--and a lot more worth saying about--these three cases. (Cutter, in particular, raises a number of fascinating and important questions about federalism and congressional power.) That said, the Supreme Court's decisions in all three cases will come down, in the end, to the question that Breyer asked over and over again during the March arguments: How far is "too far"?

We have, as Chief Justice Warren Burger once noted, an "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life." But when does "acknowledgment" go "too far," and become an endorsement that marginalizes others? The challenger in Van Orden conceded that governments may sometimes display the Ten Commandments, but insisted that Texas has crossed the line, "making some feel like insiders and some like outsiders." Likewise, extending special accommodations to religious believers, even when not required by the Constitution, is (quoting Justice Douglas) consistent with the "best of our traditions." But when do such accommodations go "too far," becoming unlawful special benefits? The lawyer for Ohio admitted in the Cutter hearing that Congress may accommodate religion, but charged that RLUIPA sweeps too broadly and creates choice-distorting incentives for prisoners to "get religion."

Observers expect that the Court will uphold RLUIPA, approve the Texas monument, and strike down Kentucky's "Foundations" display. And, after it does, we probably still won't have an answer: Where is the "Goldilocks" point, the "just right" place between a "pervasive and brooding" secularism, on the one hand, and state-managed orthodoxy, on the other? No one thinks that law does or should work like Newtonian physics, but cases have to be decided and reasons for those decisions have to be provided. Why does the Constitution permit us to open legislative sessions, but not football games, with prayer? Why may lawmakers exempt religious employers from antidiscrimination laws, but not religious publishers from sales taxes? What may governments do--and we know they may do a lot--to recognize the religious traditions of our nation's communities and the religious commitments of its citizens?

During the oral arguments, Breyer mentioned several times the standard he would use to find the elusive "too far" point: He would look, on a case-by-case basis, at the "divisive quality" of the policy in dispute. Indeed, this focus on the alleged "political divisiveness" surrounding religion is a leading theme in his recent church-state opinions. As I have argued ("Keep It to Yourself," Commonweal, August 13, 2004) though, it is a mistake to rely on judges' premises and predictions about the "divisiveness" of state action and religious expression in determining the content and standards of the Religion Clause. Too often, courts and officials have seemed more worried about the "divisiveness" thought to attend public manifestations of religious commitment than about the threats posed to authentic religious freedom and pluralism by their own overreactions. Judicial squeamishness amid contentious and messy politics is not a particularly sound tool of legal doctrine, let alone a reliable constitutional benchmark. In the end, it is both misguided and quixotic to employ the Establishment Clause to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.

Richard W. Garnett teaches at the University of Notre Dame Law School.