A Constitutional Hierarchy of Religions? Justice Scalia, the Ten Commandments, and the Future of the Establishment Clause

INTRODUCTION 1097 I. THE MEANING OF JUSTICE SCALIA'S DISSENT: CONSTITUTIONALLY PREFERRED RELIGIONS 1103 II. CRITIQUING JUSTICE SCALIA'S APPROACH 1111 A. Inclusiveness? 1117 B. Consistency? 1121 C. Originalism? 1126 CONCLUSION 1138 INTRODUCTION In June of 2005, the Supreme Court issued much-anticipated decisions in a pair of cases challenging the posting of the Ten Commandments on government property. A sharply divided Court produced a total of ten different opinions in the two cases, articulating a dizzying array of widely divergent interpretations of the Establishment Clause. The bottom line was a split decision: in Van Orden v. Perry,1 the Court sanctioned a longstanding Ten Commandments monument on the grounds of the Texas State Capitol, but in McCreary County v. ACLU,2 the Court refused to countenance two recent Ten Commandments displays on the walls of Kentucky county courthouses. The outcomes were ultimately dictated by a single vote-that of Justice Breyer, the only Justice to vote with the majority in both cases. Justice Breyer wrote separately in Van Orden to explain his thinking.3 Much attention will surely be paid to Justice Breyer's enigmatic concurrence, both because it represents the current governing rule,4 and because it is fascinating (and profoundly unsatisfying) in its own right.5 Although Justice Breyer's opinion will likely garner most of the attention, it is neither the most shocking opinion of the lot, nor the one that, in the long run, has the potential to be the most important. Those distinctions belong to the opinion of Justice Scalia, whose dissent in McCreary County may represent the beginnings of a revolution in Establishment Clause jurisprudence-a wholesale rethinking of the constitutional relationship between church and state. According to Justice Scalia's dissent, Ten Commandments monuments are constitutional because the Establishment Clause permits the government to favor religion over nonreligion (but not vice versa), and, in the context of governmental religious expression, to favor Judeo-Christian monotheism over all other religions (but not vice versa). In other words, in Justice Scalia's opinion, biblical monotheism is now, has always been, and will always be, the favored religion of the United States Constitution. To understand the revolutionary nature of Justice Scalia's opinion, consider three hypothetical cases: Case 1 : A rural Tennessee town populated primarily by devout Christians erects a massive Ten Commandments monument in the center of the town square with the express purpose of publicly honoring and expressing a communal belief m the biblical God. A local Hindu family feels offended and alienated by the monument-especially by its stark proclamation, endorsed by the government and carved in stone, that "thou shalt have no other gods before me" and that "thou shalt not bow down thyself to ... nor serve" any "graven image"-and immediately files a lawsuit seeking to have the monument removed. Case 2: A diverse suburb in Silicon Valley, California, with a majority population of first- and second-generation Asian immigrants, erects a monument on the steps of the town statehouse depicting sculptures of Vishnu and Buddha and proclaiming that one must live a good life in order to break the cycle of reincarnation and attain enlightenment. Believing that this governmentally sanctioned monument contradicts and disdains their devoutly held religious beliefs, a local Christian family quickly files suit seeking to have the monument removed. Case 3: A university town in Wisconsin erects a stone monument in the county courthouse that boldly proclaims: "There is No God. All Laws Come from Mankind Alone." A local Catholic family takes great offense and immediately files suit, seeking the monument's removal. …