I was wondering aloud to my wife this afternoon whether maybe allowing the government to establish a religion might just take the wind out of the sails of the fervently religious in this country. Government programs being what they are, all religion would soon enough come under the jurisdiction of the government religion, it would become boring and opaque, and everyone would lose interest and move on to other things. Seems to be kind of how the Church of England shook out anyway.

Doug,

You are right to suggest that establishment leads to withering of the church. However, I don't believe the type of establishment discussed in today's cases bears much relationship to the establishment that threatens both the state and religion.

I was actually reading a study today that documented religious adherence and the development of the US as a nation. Before the "disestablishment" of churches in the US religious adherence was incredibly low--close to 15%. Immediately following the disestablishment--the "Virginia Experience" et al.--religious adherence doubled, and by 1950 had more than tripled. Between 1950 and relatively recently it has barely increased at all.

Soon enough the Constitution will be a document large enough to protect you from being offended, but apparently not large enough to protect you from having your property seized and given to another private person.

Very well said.

FWIW, I think that most public expressions of religion (like courthouse 10C's, nativity scenes in public parks, etc.) should historically have been allowed, as they merely reflect the predominant culture of our nation. Ironically, the sort of 10C displays, etc., that have been put up in the last 10 years or so are the most likely to be unconstitutional w/r/t the intent behind putting them up, because their backers were trying to strike back at the ACLU and other parties (who, as I said, were wrong in the first place).

I just don't see where it ought to be a government function to display religious monuments or nativity scenes. It may well be that it would be more appropriate for legislatures to make that decision, but a legislator would be a fool to vote against any Christian display, no matter how impractical or irrelevant the display is to the proper functioning of the governmental body in question.

Another issue is the question of non-Christian citizens. Christianity is a dominant cultural factor in our country. So there doesn't seem to be a pressing need to extend that dominance to governmental displays to further remind non-Christians of Christian power in this country.

The question is not whether having a TC display is good policy. The question is whether our First Amendment prohibits it. Current jurisprudence in this area of con-law is entirely fum-didly-jacked-up. Today our Constitution allowed TC displays with one hand, but prohibited them with the other.

I’m sure you are familiar with the following cases, and depending on when you attended law school, you may have had the privilege of having professors struggle to tell a class full of unbelieving students that the SCOTUS did indeed make these decisions by consulting the same clause in our Constitution.

Constitutional: Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that read "SEASONS GREETINGS," and a crèche.

Unconstitutional: Solitary crèche adorned with a banner proclaiming "Gloria in Excelsis Deo."

Constitutional: Eighteen foot menorah and forty-five foot Christmas tree together with a sign saluting “liberty” display.

Unconstitutional: Framed copy of the TC in courthouse surrounded by the Decalogue with an array of documents including the Declaration of Independence and the Magna Carta.

Constitutional: Gigantic TC monument placed among others on the capitol grounds.

In light of Kelo, I can understand why some would find it inappropriate for a courthouse to display stone tablets that denounce theft and covetousness...

I know I'm wandering off the 1st Amendment jurisprudence farm by worrying about such questions, but what have we lost if the courts decide not to allow certain Ten Commandments or nativity displays on government property?

I mean, I definitely understand why Kelo gets people riled up: it's potentially their home at stake. But what is the need or benefit of having governments display 10 Commandments monuments or nativity scenes? What do we lose when the courts say this activity is prohibited? Are we just counting angels on the head of a pin by worrying so much about it, or is there something fundamental at stake?

Doug,

You might as well be asking what we would lose if certain areas of free speech are rolled back a little by the court (*cough* campaign finance reform *cough*). I think that creeping misinterpretation of Constitutional clauses is always a bad thing. The federal courts have been reading the Establishment clause more and more broadly. It might seem far-fetched to predict a future where even personal religious exercises are prohibited in public areas, but then again I'm sure it would have seemed far-fetched to our nation's founders that prayers at public school events would someday be banned.

Just to second what Doug just said: it seems important to distinguish between the SC deciding tough cases in potentially the wrong way, but in a manner that has little bearing beyond the tough case itself; and the SC deciding tough cases in potentially the wrong way, where that establishes a new precedent or principle that can have large ramifications beyond itself. It's easy to see how Kelo might be in the second category (though a number of bloggers have argued that, given already-existing practices, it's really more in the first). But it's awfully hard to see how the Ten Commandment cases are anything but the first.

This is part of why I just have zero problem with the why-this-case-but-not-the-other-one game that Jonathan invites us to play a couple comments earlier. The courts have held that a univocally Christian display is on side of the line, and that a fully multi-ethnic, multi-religious display is on the other -- the rest is just a matter of that line being vague. There's probably no way to make that line much less vague, so it comes down to individual judgments, which will depend a lot on the particulars of the cases and moreover may sometimes be little better than a coinflip. But, since it's just a matter of tweaking the boundaries of this vague line, it's just not a big problem -- and I agree with Eric's comment above that it'd be even less of a problem, were it not for the concerted effort of some groups to try to push that line as hard as they can.