Should Religious Symbols be Displayed on Public Property?

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The First Amendment to the U.S. Constitution prohibits laws “respecting an establishment of religion” but it does not prohibit religious displays—Ten Commandments displays, crosses, Stars of David, nativity scenes, etc.—on public property. The primary reason there is a public discussion about religious symbols in public places is that various courts have for the past several decades ordered some of these symbols or displays (but not all) off public grounds as a constitutional violation.  But an examination of the First Amendment reveals that the law requires no such religious purge.

The last time “We the People” ratified a constitutional provision about religion “we” said, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That was in 1791. Those words of the First Amendment have never been amended. According to Article VI of the Constitution, whatever we ratify into the Constitution is “the supreme law of the land.” The judicial oath in Article VI requires judges to be “bound by oath or affirmation to support this Constitution.” Thus, the words of the Constitution are the “supreme law” and, not surprisingly, should decide the question of whether religious symbols run afoul of that law.

Symbols from the Ten Commandments to nativity scenes have been challenged in courts and almost invariably the sole constitutional argument proposed is that the challenged display violates the Establishment Clause of the First Amendment.  Just as invariably, however, the offended plaintiffs do not argue that the religious symbol violates the words of the First Amendment; rather, they argue that the symbol is impermissible under one of a number of judicial “tests”—e.g., the Lemon Test, the Endorsement Test, the Coercion Test, the Neutrality Test—which each contain multiple factors or prongs derived from one or more previous court opinions and that (conveniently) must be applied by a judge or judges on a case-by-case basis rather in a consistent, predictable, repeatable manner.  The only commonality shared by all said judicial “tests” is that none are consistent or even attempt consistency with the words of the law: “Congress shall make no law respecting an establishment of religion.”  To judge a religious display based on a judicial test is to consult what is not the law to determine unlawfulness.

The first word—“Congress”—should give the reader of the Establishment Clause pause in that it is the only entity of government expressly restrained by the text from making a “law respecting an establishment of religion.” No other branch, such as the executive or judicial, or any other government level, such as the state or local, are in view (though all state constitutions now prohibit similar laws). Although the Supreme Court has “incorporated” the provisions of the First Amendment to apply to state and local governments through the due process clause of the 14th Amendment, the text of the Constitution does not support such legal shoe-horning. Regardless, defeating the “incorporation doctrine” is not necessary to this argument, as an application of the rest of the Clause quickly demonstrates.  

The action prohibited by the Establishment Clause is a “law,” not a mere proclamation, resolution, judicial opinion, or public monument or display. Finally, the law prohibited is one “respecting an establishment of religion.” An establishment of religion is an official, government-sanctioned denomination, where a particular church affiliation is supported by tax dollars and enjoys legal benefits that other denominations do not.  A majority of the states that ratified the Establishment Clause, in fact, had their own state established religions (e.g., Anglicanism in Virginia), and did not care to be in competition with a national establishment that might conflict with their own. Thus, unless Congress has passed a law that establishes a particular official religion, then no violation of the Establishment Clause of the First Amendment has occurred.

The plain words of the First Amendment are still in effect—and still the supreme law of the land.  However much one may feel offended or elated by seeing a religious symbol displayed on public property, and however much one may wish such symbols to be unconstitutional, the feelings of a judge or a plaintiff should not dictate legality (or illegality) in a country that is supposed to be governed by the rule of law and not the rule of man.