Suing Over the Separation of Church and State

Given the Crist controversy, the prior column below on the separation of church and state may be of interest.

December 16, 2002 Los Angeles Times

We Wish You a Merry Lawsuit;
Santa brings lots of litigation on religious symbols.

BYLINE: Jonathan Turley


For me, a constitutional law professor, it is the best time of year. Houses are festooned with lights and decorations with the promise of Christmas. ‘Tis the season to be suing.

Across the country, groups are fully engaged in the annual battles over creches, crosses and other religious symbols appearing on public property. It is like a form of Christmas Kabuki. Public officials first defiantly place a creche on public land and then wrestle with the dark forces of the American Civil Liberties Union until some federal judge ends the matter with the predictable court order to remove the display.

This year, one of the most notable cases involves a 5,300-pound monument to the Ten Commandments in front of the Alabama Supreme Court. Alabama’s chief justice, Roy Moore, stated that the monument was meant to remind all citizens of the “sovereignty of God over the affairs of men.” In case of any uncertainty as to which “God,” Moore said he was referring to Jesus Christ and that other deities would deny our freedoms and specifically would “not allow for freedom of conscience.”

Unpersuaded, a federal court recently ordered the removal of the monument and noted that Moore’s views came “uncomfortably … close to … a theocracy.” In the spirit of the season, Moore is appealing with the financial support of a religious group.

Yet there’s something new in this year’s list of the naughty and the nice of state-church entanglements. Cities have hit on an idea of how to allow religious displays on public land: They are simply selling or giving public land to religious or civic organizations. Under this theory, a city could have a permanent creche with “Christ is the Lord” emblazoned across its display in the middle of the court complex, so long as the 10-foot space was the property of a local church.

If the federal judge viewed Alabama’s display as suggesting theocracy, he might want to visit Main Street Plaza in Salt Lake City. This plaza was city property connecting the main temple of the Church of Jesus Christ of Latter-day Saints to its administration building. The church has long chafed at the conduct of the public there, conduct that it felt insulted Mormon values.

In 1999, the city agreed to sell the entire block to the church, with the stipulation that the sidewalk remain open for public traffic. The church proceeded to enforce its ban on such things as smoking, sunbathing, playing music, distributing literature and a catchall category of “disorderly speech, dress or conduct.” One Baptist was arrested by city police for passing out literature. A federal court ruled that the sidewalk remained a protected public forum. The church is appealing.

Other recent transfers are more modest. For example, the city of San Diego thought that a transfer of a small part of its 179-acre Mt. Soledad park could preserve the 43-foot cross that is a beloved symbol in La Jolla.

After it was sued by the ACLU, the city arranged the transfer of the property under the cross to a civic group. But the U.S. 9th Circuit Court of Appeals rejected the deal as rigged to favor organizations that wanted to preserve the cross.

In Wisconsin, 400 square feet of a tiny one-acre park may be transferred to protect a Ten Commandments monument. Theoretically, any religious endorsement could then be shown in the center of the park.

With all of these transfers, it is no wonder that the original set of Commandments was made portable so Moses could carry them on his person.

Carving off parts of public land is hardly an answer to church-state tensions. The Ten Commandments can be shown in public buildings (like the display in the U.S. Supreme Court) only if part of a display of early legal sources.

Ironically, for those who view the Ten Commandments as one of the foundation stones for law, it is the American constitutional system that is its greatest expression. The courthouse itself, not the specific display, is the greatest testament to the pursuit of justice and tolerance embodied by Moses as law-giver.

Those looking at the empty space in the Alabama Supreme Court may want to consider the Latin inscription above the tomb of Christopher Wren, in his magnificent St. Paul’s Cathedral: “Si monumentum requires, circumspice”: If you seek his monument, look around you.


Jonathan Turley is a law professor at George Washington Law School.

LOAD-DATE: December 16, 2002

5 thoughts on “Suing Over the Separation of Church and State”

  1. We’d be doing lot a better had we kept “religion” out of it,
    thank you.

    With all due respect, that is exactly the genius that was intended originally.

  2. interesting… an unintended, genius aspect of democracy is that the state of the government will represent the state of the people. We needn’t impose any particular religion on our government. Whether or not our government is morally stable will reflect the moral stability of us, the people. So how are we doing?

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