Howard J. Bashman's appellate columns, etc.

Take two tablets: Courts struggle over where to draw the line between Church and State

By Howard J. Bashman
Monday, September 8, 2003
Should pious Catholics be permitted to serve as judges on our nation's federal appellate courts? May a courthouse display as the centerpiece of its rotunda a large granite monument to the Ten Commandments? What about a historic plaque bearing the Commandments' text located on an outside wall of a courthouse? Can public schoolteachers lead children in reciting the Pledge of Allegiance if it contains the words "under God"? And may the Governor of Alabama pursue a religiously-motivated effort to achieve tax fairness for the poor?

More than 210 years have passed since the First Amendment became a part of the United States Constitution, and yet courts today remain far from resolving definitively what that amendment means when it provides that government "shall make no law respecting an establishment of religion."

The absolutist positions have long ago been rejected. The establishment clause prevents more than the creation of an official, governmentally-endorsed religious creed. Conversely, those who believe that religion can play no role in government need only examine the motto on the money in their pocket ("In God we trust"), attend a session of court (where a court employee begins the day by proclaiming "God save this honorable court"), or observe the opening prayer that begins each day of work in the U.S. Congress and in many state legislatures.

Rejection of the extreme positions has not squelched the battle over where to draw the line between Church and State. The absolutist positions, despite their other drawbacks, are at least easy to apply in practice. But today's disputes don’t involve the extremes, and a lack of clear rules to govern cases arising in the middle only serves to encourage additional litigation.

Consider, for example, the recent court battle over the lawfulness of Ohio's state motto, "With God, All Things Are Possible." The American Civil Liberties Union brought a suit challenging the motto in an Ohio federal trial court, which upheld Ohio's use of the slogan.

On appeal, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled 2-1 that Ohio's motto was unconstitutional. But the Sixth Circuit reheard the appeal en banc, and the full court ruled 9-4 that the motto was not an unconstitutional governmental endorsement of religion. The majority and dissenting opinions demonstrate how very difficult of a question that case presented.

The U.S. Supreme Court soon will have an opportunity to wade into this ongoing battle, because on the agenda for October 2003 is an announcement concerning whether the Court will agree to review the Ninth Circuit’s ruling that prohibits teachers from leading schoolchildren in reciting the Pledge of Allegiance containing the words "under God." Nearly every member of the U.S. Congress denounced the Ninth Circuit's ruling after it issued last summer, but, in fairness, the Ninth Circuit's ruling relies on a plausible reading of U.S. Supreme Court precedent in this murky area of the law.

Another fertile battleground involves the Ten Commandments. Today, many localities throughout the United States are involved in or facing the prospect of litigation over monuments to the Commandments. The case that has received the most attention involves the "Ten Commandments Judge" who was elected in November 2000 to serve as the Alabama Supreme Court's Chief Justice.

On July 1, 2003, a rather conservative three-judge panel of the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit affirmed a Montgomery, Alabama federal trial judge's ruling that the large granite monument to the Decalogue could not remain in the rotunda of the Alabama Judicial Building. Thereafter, Alabama Chief Justice Roy S. Moore refused to follow a federal court's order that required him to remove the monument from public display by August 20, 2003. As a result, he was suspended from the bench and faces a disciplinary hearing. Following Chief Justice Moore's suspension, the remaining justices on Alabama's highest court had the monument removed from public display and placed in a storage closet.

Less than a week before the Eleventh Circuit decided the Alabama case, the Philadelphia-based U.S. Court of Appeals for the Third Circuit ruled that a Ten Commandments plaque mounted in 1920 on the wall of a county courthouse in West Chester, Pennsylvania could remain on display. The Third Circuit's ruling reversed a federal trial judge's decision directing the plaque’s removal. That the plaque was historic, unobtrusive, and posted outside the courthouse on a wall that was no longer near a functioning entrance made all the difference.

Only time will tell how many other federal appellate courts will address the lawfulness of Ten Commandments monuments before the U.S. Supreme Court finally announces its views on the subject. Before the High Court agrees to hear a Ten Commandments case, however, brand new nominees to that court will likely be drawn into the judicial confirmation firestorm over the relevance of a nominee's religious beliefs to one's fitness to serve as a federal judge.

Of course, judges serving on the U.S. Courts of Appeals must follow the decisions of the U.S. Supreme Court even when they disagree with those decisions as a matter of personal conscience. Overlooking that judicial obligation, Democrats in the U.S. Senate are filibustering several otherwise qualified nominees to intermediate federal appellate courts because of concerns relating to these nominees' perceived personal opposition to abortion. Nominees who are willing to put aside their personal views and faithfully apply the rulings of the U.S. Supreme Court should be confirmed. Anyhow, no judge on an intermediate federal appellate court has the power to overrule U.S. Supreme Court precedent conferring the right to an abortion.

The U.S. Supreme Court, of course, does have the power to overrule its own precedent. If an anti-abortion President nominates someone to fill a vacancy on the Supreme Court, pro-choice Senators will probably do all they can to block confirmation in the absence of express assurances that the nominee won't vote to overrule Roe v. Wade. And perhaps a filibuster should be expected from antiabortion Senators if a pro-choice President nominates someone who favors Roe to join the Supreme Court. The current, sorry state of judicial confirmation politics validates the argument that the difficult subject of abortion would be best left to the political, rather than the judicial, branches of government.

While it is beyond reasonable dispute that, for judges, legal precedent must prevail over conflicting dictates of religious belief, politicians have considerably more leeway to determine what policies to support based on their religious faith. Thus, when Alabama's Governor announced that he favors a recalibration of that state's tax system to require the wealthy to pay more in taxes and the poor to pay less, it was immaterial whether his proposal was based on his Christian faith or secular concerns of fairness.

The battle over the appropriate role that religion may play in government is not new, and it remains far from being definitively settled. Unless and until the U.S. Supreme Court brings needed clarity to this unsettled area of the law, lower court rulings will continue to demonstrate -- in the spirit of Ohio's controversial motto -- that when it comes to God, anything is possible.

This article is reprinted with permission from the September 8, 2003 issue of The Legal Intelligencer © 2003 NLP IP Company.