Led Blindly: One Circuit's Struggle to Faithfully Apply the U.S. Supreme Court's Religious Symbols Constitutional Analysis

Abstract

The United States Supreme Court is a teaching court. Its primary role, once explained Justice O’Connor, “is to guide and shape the development of federal law generally, so as to enable lower courts to perform their responsibilities more effectively and fairly.” Yet, in few areas has the Court done as poor a teaching job as it has in its Establishment Clause jurisprudence. Venturing into that collected body of law, one judge bemoaned, is entering “Establishment Clause purgatory.”

This article explores the Supreme Court’s religious symbol jurisprudence (namely, displays of Ten Commandments, crèches, menorahs, Latin crosses, religious inscriptions, and the like), but it does so with a unique objective in mind. This exploration is intended to focus not on whether this decisional law is rational, coherently assembled, or historically defensible, but rather whether it is good, effective teaching. To conduct that analysis, the article targets one judicial region (the federal and state courts within the United States’ Fourth Judicial Circuit). This region is especially useful for this inspection because it has been both vibrantly active in this jurisprudence and comprehensive in its array of examined symbols.

The article begins by introducing the reader to the origins of the Religion Clauses in the United States, and then especially to the development and analytical testing devices used with the Establishment Clause. The article continues with a sketching of the U.S. Supreme Court’s symbol cases, organized topically by symbol. The article next examines each of the Fourth Judicial Circuit region’s symbol cases, and critically assesses just how well the Supreme Court’s precedent has guided the lower judiciary in resolving these delicate disputes. The article concludes with observations about the Supreme Court’s success as a teacher, why that teaching is failing, and the haunting consequences for religious liberty in America.

Keywords: Religious Symbols; Establishment Clause; Creche; Nativity; Menorah; Cross; Ten Commandments; Motto