Religious Expression and Public Places

As the U.S. Supreme Court has said: "[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." This reference to "private speech" is not limited to speech "in private," of course, but describes religious expression attributable to private individuals and groups rather than to the government.

In many cases, it is easy to tell whether the religious speech is protected or prohibited. For example, it is perfectly clear that a church may display a crèche or a cross on a church yard and that people may express their religious convictions on radio and television as well as in books and newspaper articles.

But what about religious expression on government property? For example, may a congregation use a public park for a religious rally? May the government post a copy of the Ten Commandments on the walls of a county courthouse or display a Ten Commandments monument on the grounds of a state capitol?

The following commentary briefly describes some of the ways in which the Supreme Court has analyzed these more complex issues. It first offers examples of protected private speech endorsing religion and prohibited government speech endorsing religion. It next discusses an exception to the basic rule and examples of government speech that do not endorse religion, even though they contain religious elements. The commentary concludes with a brief reflection on some ways in which Supreme Court decision-making on these issues could be affected by recent changes in the make-up of the Court.

Protected Private Speech Endorsing Religion

The Court basically has held that, when the government generally opens a forum for non-governmental expression, it must allow religious as well as non-religious speech. As long as it is clear that the religious speech is attributable to individuals and groups rather than the government and that religious speech has not been preferred over non-religious speech, then this equal access rule applies. (Of course, the government also must ensure that it does not prefer one religion over another in this context or any other.)

For example, the Court has required a state university to open its facilities to student-organized religious clubs when it made those facilities available to other student clubs, and it has upheld a federal law applying a similar policy to public secondary schools. It has ruled that community religious groups generally must have the same access to public property as other non-religious community groups. Further, the Court has held that a cross sponsored by private citizens may be temporarily erected in a city park if other symbols also were permitted this access and it was otherwise clear that the displays were not endorsed by the government. In short, this equal access principal provides a wealth of opportunities for religious voices to be heard in the public square.

Prohibited Government Speech Endorsing Religion

As noted above, government speech endorsing religion is generally prohibited. For example, the Supreme Court has struck down the practice of school-sponsored prayer and Bible reading in public elementary and secondary schools.

Also, in 2005 a closely divided Supreme Court struck down a display of the Ten Commandments that had been posted in a Kentucky county courthouse. The Ten Commandments were first posted by themselves. After a lawsuit was filed, a more extensive exhibit was erected that included a large framed copy of the Ten Commandments as well as eight other documents in smaller frames, including the Declaration of Independence and the national motto, "In God We Trust." This exhibit was authorized by a county resolution that referenced, among other things, a 1993 statement of the Kentucky House of Representatives calling for the posting of the Ten Commandments "in remembrance and honor of Jesus Christ, the Prince of Ethics." When a court halted that display, the county erected another display that consisted of nine framed documents of equal size, including one that featured the Ten Commandments. The other documents included the Magna Charta, the Declaration of Independence, the National Motto and the Bill of Rights. In a 5-4 decision, the Supreme Court held that the government had acted with "the ostensible and predominant purpose of advancing religion" when it had erected these displays. Thus, in an opinion written by Justice Souter and joined by Justices Stevens, O'Connor, Ginsburg and Breyer, the Court declared the display unconstitutional.

It also should be noted that there are times when the Court has found that even religious expression by a citizen or private group can be so closely associated with the government that it is properly attributable to the state and thus unconstitutional. For example, in 1989, the Court struck down the display of a crèche that stood alone on the "Grand Staircase" of a county courthouse, even though the display was erected by a Catholic group. The Court noted that the Grand Staircase was the "main" and "most beautiful part" of this government building, and that "no viewer could reasonably think that it occupies this location without the support and approval of the government." The Grand Staircase "d[id] not appear to be the kind of location in which all were free to place their displays for weeks at a time, so that the presence of the creche in that location for over six weeks would then not serve to associate the government with the creche." Thus, the Court said, "the county sends an unmistakable message that it supports and promotes the Christian praise to God that is the creche's religious message."

In this 1989 case, the Court explained that the fact that the display was owned by a Catholic group did not mean that it was protected speech:

The fact that the creche bears a sign disclosing its ownership by a Roman Catholic organization does not alter this conclusion. On the contrary, the sign simply demonstrates that the government is endorsing the religious message of that organization, rather than communicating a message of its own. But the Establishment Clause does not limit only the religious content of the government's own communications. It also prohibits the government's support and promotion of religious communications by religious organizations.

In a similar vein, the Supreme Court in 2000 invalidated a policy whereby the school orchestrated a majoritarian vote on whether "a brief invocation and/or message" would be said by a student at the games. The prayers were broadcast over the school's public address system at these official school events. Thus, while the prayers were uttered by students, the Court found that this policy encouraged religious expression that was backed by the government. This ruling does not prohibit students from organizing informal prayer sessions before, during or after football games (or other sports events) on their own initiative.

An Exception to the Rule and Government Speech that Does Not Endorse Religion

In 1983 the Court recognized a narrow exception to the general rule against government-endorsed religion. In Marsh v. Chambers, the Supreme Court upheld a state legislature's practice of opening each legislative session with a nonsectarian prayer led by a chaplain paid with public funds. The Court based its holding largely on the fact that this "practice of opening sessions with prayer ha[d] continued without interruption ever since [the First Congress of the United States]" and had "been followed consistently in most of the states."

The Court also has upheld certain governmental holiday displays that had some religious elements when the displays taken as a whole did not appear to be an endorsement of religion. For example, in 1984, the Court upheld a city-owned Christmas display that was placed in a park. The display was "comprise[d] of many of the figures and decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads 'SEASONS GREETINGS,' and the creche at issue here."

The Court found that this Christmas display did not violate the Establishment Clause of the First Amendment. It said: "When viewed in the proper context of the Christmas Holiday season, it is apparent that, on this record, there is insufficient evidence to establish that the inclusion of the creche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message." Essentially, the Court found that the creche's inclusion in this multi-faceted display did not send a message that the government was endorsing religion generally or Christianity in particular.

And, even though the Court hasn't ruled on these issues, various members of the Court have indicated that things such as the national motto, "In God we Trust," are constitutionally permissible. For example, Justice William Brennan referred to these expressions as "ceremonial deism" - a government expression of religion that is so generic and commonly used that it has largely lost its religious meaning. In 1984, Justice Brennan wrote:

[W]e have noted that government cannot be completely prohibited from recognizing in its public actions the religious beliefs and practices of the American people as an aspect of our national history and culture. While I remain uncertain about these questions, I would suggest that such practices as the designation of "In God We Trust" as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow's apt phrase, as a form a "ceremonial deism," protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content. Moreover, these references are uniquely suited to serve such wholly secular purposes as solemnizing public occasions, or inspiring commitment to meet some national challenge in a manner that simply could not be fully served in our culture if government were limited to purely nonreligious phrases. The practices by which the government has long acknowledged religion are therefore probably necessary to serve certain secular functions, and that necessity, coupled with their long history, gives those practices an essentially secular meaning.

Like Justice Brennan, many today believe that the words "under God" in the Pledge of Allegiance fall into this category. Others do not. Final resolution of this matter will require a judgment from the U.S. Supreme Court.

These kinds of expression are often known by another name as well - "civil religion." In the late 1960s, sociologist Robert Bellah coined the term "civil religion" to describe generic, quasi-religious visions of public life. Some regard civil religion as a mostly positive force that has helped to unify our country. Others worry that it corrupts religion by putting faith at the service of the state. Moreover, contemporary commentators have questioned whether the concept of civil religion that was developed in the 1950s and 60s is outmoded given the increase in religious diversity since that time. Thus, even though elements of civil religion are considered legally permissible, the concept continues to be controversial for a variety of reasons.

Religion Expression and the Roberts Court

The Supreme Court decided two Ten Commandments cases in 2005. In addition to the Kentucky Ten Commandments case described above, a closely divided Court ruled that a government-sponsored Ten Commandments monument that has stood for over forty years on the grounds of the Texas State Capitol is constitutionally permissible. In addition to the Ten Commandments monument, 17 other monuments and 21 historical markers commemorating the "people, ideals, and events that compose Texan identity" are featured on the 22 acres surrounding the Texas Capitol. In an opinion joined by Justices Scalia, Thomas and Kennedy, Chief Justice Rehnquist distinguished this Texas Ten Commandments case from other cases involving government-sponsored religious exercises, such as school-sponsored prayer. He stated:

Texas has treated her Capitol grounds monument as representing the several strands in the State's political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. We cannot say that Texas' display of this monument violates the Establishment Clause of the First Amendment.

The crucial fifth vote in the Texas Ten Commandments case was cast by Justice Stephen Breyer, who did not join the opinion written by Chief Justice Rehnquist, but wrote separately, saying this was a "borderline" case. Justice Breyer noted that the monument was donated to the state by the Fraternal Order of Eagles, a "private civic (and primarily secular) organization [that was] interested in the religious aspect of the Ten Commandments, [but also] sought to highlight the Commandments' role in shaping civic morality as part of that organization's efforts to combat juvenile delinquency." The display prominently acknowledges that it was donated to the state by the Eagles, Breyer wrote. He also cited the presence of the other monuments and markers in the large park area, saying that this physical setting "suggests little or nothing of the sacred." Thus, Breyer said "the context [of the monument] suggests that the State intended the display's moral message - an illustrative message reflecting the historical 'ideals' of Texans - to predominate."

Breyer contrasted this history and context with the Kentucky Ten Commandments case. Unlike the Texas Ten Commandments display, Breyer said, "the short (and stormy) history of the [Kentucky] courthouse Commandments' displays demonstrates the substantially religious objectives of those who mounted them, and the effect of this readily apparent objective upon those who view them." Further, Breyer emphasized that the time at which a display is posted may be crucial:

[I]n today's world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.

Breyer explained that the overall context of the Texas Ten Commandments monument indicated that it might satisfy traditional Establishment Clause tests, yet he said his conclusion did not necessarily rest on those tests. Breyer wrote:

I rely less upon a literal application of any particular test than upon consideration of the basic purposes of the First Amendment's Religion Clauses themselves. This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.

Justice Breyer also emphasized that a ruling that would require the removal of this monument "might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation." Thus, Breyer said, such a ruling could "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

It is important to note that, in addition to joining the opinion written by Chief Justice Rehnquist in this case, both Justices Scalia and Thomas wrote separate concurring opinions. In their opinions, these justices argued that the Court should interpret the Constitution in ways that would give the government wide latitude to endorse religion. While these justices spoke only for themselves in these opinions, their arguments (or ones similar to them) could gain support within the newly constituted Supreme Court. (After the Ten Commandments decisions were handed down, Justice O'Connor announced her retirement from the bench. Soon thereafter, Chief Justice Rehnquist passed away. Rehnquist was replaced by Chief Justice John Roberts and O'Connor was replaced by Justice Samuel Alito.)

In his concurring opinion in the Texas Ten Commandments case, Justice Scalia indicated that he would allow the state to favor religion generally. Scalia explained:

I would prefer to reach the same result [i.e., upholding the Texas Ten Commandments monument] by adopting an Establishment Clause jurisprudence that is in accord with our Nation's past and present practices, and that can be consistently applied - the central relevant feature of which is that there is nothing unconstitutional in a State's favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.

Justice Thomas returned to an argument he has made in previous cases - the argument that the Establishment Clause should be read to apply only the federal government, not the states. In any case, however, Thomas argued that the Court should return to the "original meaning" of the word "establishment." According to Thomas, "[t]he Framers [of the Constitution] understood an establishment 'necessarily [to] involve actual legal coercion,' " such as government-mandated participation in religious activities. Thus, he explains, "[t]here is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional." Justice Thomas concluded his concurring opinion by stating that "a more fundamental rethinking of our Establishment Clause jurisprudence remains in order."

In his confirmation hearings, a Senator asked then-Supreme Court nominee John Roberts about the 2005 Ten Commandments rulings handed down in 2005. While Roberts said he was "not commenting on the correctness" of the decisions, he nonetheless noted that "there's exactly one justice [Justice Breyer] that thinks [that both the Kentucky and Texas Ten Commandments decisions are] right." In short, he chided the Court for its failure to send a clearer signal in this context. It remains to be seen whether and how Chief Justice Roberts will be able to lead his colleagues toward greater cohesion and clarity on these issues.

Note: The U.S. Supreme Court did not apply the "endorsement" test in all of the cases described in this section. Nonetheless, the term "endorsement" is used throughout this section in an attempt to provide a more consistent and accessible explanation of the case law.