In a New York Times opinion piece, Linda Greenhouse raises questions about how today’s Supreme Court might take a different approach to church/state issues compared to past courts. Indeed, there has been a good deal of turnover recently, with four of the nine justices having been appointed within the last five years. She argues that an upcoming case, McCreary County v. American Civil Liberties Union of Kentucky, may offer a glimpse of how the new court will decide future cases concerning the relationship between religion and the state in the U.S. The case constitutes the revival of older battles in which Kentucky county officials have posted framed copies of the Ten Commandments on courthouse walls. While various courts have struck down these efforts in the past, the wily (or creative, depending on your stance) officials have repeatedly come up with new scenarios that they argue make the display of the commandments more “civic” and less “religious.”
Is it ever constitutional to display an explicitly religious document in a government setting, regardless of whether it is has a civic history as well? While Supreme Courts have often answered no to this question in the past, Greenhouse wonders whether that will still be the case in a court led by Chief Justice Roberts and absent Justices Stevens and Souter, two of the courts more reliable separationists:
There is no doubt the court is changing, in ways that may not be immediately obvious. Cases that concern the separation of church and state are among those on which the retirement of Justice John Paul Stevens is likely to have the greatest impact. For years, Justice Stevens was the Supreme Court’s strictest separationist. For example, in the abortion context, he was the only justice willing to articulate the position that laws incorporating the view that life begins at conception are theological exercises that should be invalidated on Establishment Clause grounds. (The fact that we may soon have to endure another debate over embryonic stem cell research makes me miss Justice Stevens and his wisdom all the more.) Justice Stevens lost most of his battles in the religion cases, but even in defeat he set a marker and made a record. For example, he wrote a powerful dissent this spring from a splintered and nearly incoherent decision that let Congress get away with swapping public land for private under the foot of a five-foot-tall cross on a hilltop in the Mojave National Preserve. In his opinion in that case, Salazar v. Buono, Justice Stevens said the cross sent a “starkly” and “inescapably sectarian message” that couldn’t be evaded by deeming the cross a memorial to the fallen soldiers of World War I.
Read more here.