The Constitution itself codifies two conflicting impulses. The First Amendment guarantees simultaneously that “Congress shall make no law respecting an establishment of religion” and that Congress won’t “prohibit… the free exercise thereof.” Which one is it? How can Congress avoid promoting religion, while also encouraging its free exercise? One answer is that the “Establishment Clause” was not intended by the framers to erect an unbreachable “wall between church and state.” Thomas Jefferson himself, who coined that phrase, had no compunction about holding church services in the chambers of the Supreme Court. One possible view is that the Establishment Clause was intended only to ensure that there was no official adoption of a state religion.
Suffice to say that in recent decades, the Supreme Court has asked whether the religious aid has some “secular legislative purpose,” “neither advances nor inhibits religion,” and does not foster “an excessive government entanglement with religion.” Whatever. The test is disastrous, allowing, as Justice Scalia has observed, the court to reach the result it wants every time. Justices O’Connor, Kennedy, and Thomas have each made up new Establishment Clause tests in recent years, signaling that Lemon may be law, but it’s a stupid law.
Using these new tests, the court has eroded the wall between church and state to some extent. Religious claimants now have the same rights as the nonreligious in terms of school facilities, resources, and access. Last year’s vouchers decision lowered the wall further. But outside the public school context, the test is essential whether the state appears to be endorsing a particular religion (or religion in general over atheism). If the answer is yes, the display or prayer is impermissible. Recall that these cases concern public spaces, public schools, and public money. No one (except perhaps the neighbors) can stop Justice Moore from putting a 200,000-pound Decalogue in his driveway.
Yes, he pays lip service to the commandments as the “foundation of Western Law” (although at last count only two are legally binding on the states). But what Moore and other Decalogists seek to do is inspire religious zeal, restore religious practice, and stop the godless young hooligans and abortion seekers in their tracks. In short, he wants to proselytize, and he’s been open about that project from the start.