LJ-SEC: (ORIGINALLY POSTED BY sunfell)

This New York Times Op-ed talks about the upcoming Supreme Court selection:

July 4, 2005
The Church-State Wall Is the Best Protection Against Religious Strife
By ADAM COHEN

The wall of separation between church and state is in real danger of falling now that Sandra Day O'Connor is retiring. The Supreme Court narrowly reaffirmed its commitment to that wall last week in its Ten Commandments rulings, but only because Justice O'Connor voted to maintain that wall. If her replacement votes the other way, there may soon be more crosses, Ten Commandments monuments and prayers on government property.

There is a growing debate about what impact that would have on American life. That debate subtly found its way into last week's decisions. The justices generally focus more on what they think the Constitution means than on how their decisions are likely to be received. But two of last week's opinions made oblique reference to the rise of the religious right and its increasing anger over the court's religion rulings.

Justice Stephen Breyer, who was a key swing vote, suggested - in an argument that may be gaining strength nationwide - that being less strict about the separation of church and state might appease religious activists and reduce the nation's religious tensions. But Justice David Souter made the more compelling argument that the nation's growing religious divisions only underscore the need for the government to remain neutral in religious matters.

The Ten Commandments cases were decided against a backdrop of extraordinary attacks from religious activists. Shortly after the cases were argued, they staged "Justice Sunday," a rally addressed by the Senate majority leader that was beamed to hundreds of churches across the country. Speaker after speaker denounced the judiciary. On his radio show, James Dobson, head of Focus on the Family, has compared the "black-robed men" on the Supreme Court to the "men in white robes" of the Ku Klux Klan.

It appears, from last week's decisions, that this heated rhetoric may have had an effect on the court. The swing vote in the two cases was Justice Breyer, who usually sides with the court's four-member liberal bloc. In one case, he joined with the liberals - and Justice O'Connor - to strike down Ten Commandments displays on the walls of county courthouses in Kentucky. But in the other, he joined conservatives in upholding a Ten Commandments monument on the grounds of the Texas State Capitol.

Justice Breyer felt that because there were so many displays like the Texas monument around the country, ordering it removed could "encourage disputes" and "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid." But it is not clear that as a practical matter, allowing more religious displays would reduce religious tensions.

In fact, Justice Souter, writing for the majority in the Kentucky case, argued just the opposite. Although America is "centuries away from the St. Bartholomew's Day massacre," he wrote, "the divisiveness of religion in current life is inescapable." Given that, Justice Souter warned, "this is no time to deny the prudence of understanding the Establishment Clause to require the government to stay neutral on religious belief."

It would be a mistake to make too much of Justice Breyer's brief comment about keeping the religious peace, especially since he also signed on to Justice Souter's opinion, which took the opposite position. But the argument has been made in other places, too. In his new book, "Divided by God," Noah Feldman, a prominent New York University law professor, uses similar reasoning to argue that the courts should "loosen up on religious talk and symbols."

There is undeniably a need for more common ground between conservative Christians and the rest of the country. But injecting more religion in public life is the wrong way to go about achieving it. If government forums are opened to religious expression, we can look forward to bitter fights about what kind to permit. The City Council in Boise, Idaho, hardly a hotbed of secularism, voted to move a Ten Commandments monument off city property a while back after a right-wing minister insisted on his right to put up his own religious monument - one denouncing homosexuality and saying that Matthew Shepard, the slain gay Wyoming college student, was in hell.

Opening up government forums to religion would almost inevitably prompt more fighting over exactly which religion gets to participate. A narrow view of which religion should be intertwined with government was on display last month in Guilford County, N.C., where the presiding judge ruled that Muslim witnesses cannot take their oaths on the Koran. If that were allowed, he said, someone who worshiped brick walls might want to swear on a brick.

When Justice O'Connor's successor joins the court, the church-state wall is very likely to weaken. If Justice Breyer is right, yielding ground to religious advocates could reduce "religiously based divisiveness." But if Justice Souter is right, it would only make things worse. The early response to last week's decisions was not encouraging. The day the rulings came down, the Christian Defense Coalition announced a campaign to place more Ten Commandments monuments in communities across the country. One community the group has taken aim at is Boise - which all but guarantees there is plenty more divisiveness yet to come.