Tear Down This ‘Wall’

The Supreme Court looks poised to weigh anew religion’s role in public life. This is precipitated by Texas’s mandate that schools display the Ten Commandments. The mere display breaches “the separation of church and state,” avers the American Civil Liberties Union, teeing up an appeal of the Fifth Circuit ruling upholding Texas’s law. Yet the idea of a strict wall between church and state is a judge-invented standard, not a constitutional mandate. That insight is underscored by the scholar of constitutional law Josh Blackman, who expects the Texas case to be appealed this summer. The dispute, Mr. Blackman says, reminds that hardly anyone “can remember a world before the Warren Court established the separation of church and state.” In the same vein, he suggests that, at the time of the high court’s Dobbs ruling, few could recall the contours of the legal landscape on abortion before Roe v. Wade.Both Roe and the notion of a church–state partition, in Mr. Blackman’s telling, are products of liberal Supreme Court rulings in the decades after World War II. During those years, he writes, “the Supreme Court actively and brazenly altered nearly every facet of our polity.” Under activist liberal majorities, “longstanding traditions were disregarded,” he adds, “and the justices instead imposed their modern sensibilities on the American people.”These liberal precedents are enshrined by the left as untouchable. Feature the ACLU’s argument that the Fifth Circuit ruling for Texas “goes against fundamental First Amendment principles and binding U.S. Supreme Court authority.” Yet it’s the language of the Constitution, not the liberal precedents, that counts. As Mr. Blackman puts it, “the relevant tradition is the tradition the people established, not the tradition the Court imposed.”This reasoning was echoed by the riders of the Fifth Circuit in their ruling upholding Texas’s law on the Commandments. The 9–8 decision in Nathan v. Alamo was by the full bench of the circuit. The Lone Star law, the majority of the circuit riders held, “does not violate either the Establishment Clause or the Free Exercise Clause” of the First Amendment. This is in part because, the majority said, the law does not resemble “a founding-era religious establishment.”That criterion hearkens back to the First Amendment requirement that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The circuit riders note that “in the late 18th century,” an “establishment of religion” was “a polity’s official church or religion.” More than half of the states had such establishments at the time the First Amendment was ratified, the riders report.States with religious establishments had on their books “laws compelling attendance at the official church,” the circuit riders say, as well as “laws punishing dissenters,” and “religious taxes.” Yet Texas’s law on the Commandments, the circuit riders assert, “looks nothing like a historical religious establishment.” The law “does not tell churches or synagogues or mosques what to believe or how to worship,” or punish anyone who “rejects” the Commandments.Nor does Texas require any “religious exercise or observance,” the circuit majority finds. “Students are neither catechized on the Commandments nor taught to adopt them.” The circuit dissenters point to Jefferson’s private idea of a “wall of separation between Church and State.” This idea was stretched in 1947 by the Supreme Court in Everson v. Board of Education to bar “laws which aid one religion, aid all religions, or prefer one religion over another.”This antipathy to religion in the public sphere would bear fruit in later liberal rulings, Mr. Blackman says. “Before the Warren Court intervened, many public schools required students to recite a prayer at the start of every day,” he writes. The Commandments case could test which tradition will prevail, Mr. Blackman asks: Will it be the constitutional government of the nation’s founding and “first 175 years,” or “the last 75 years when we lived under judicial rule?”

Tear Down This ‘Wall’

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