Given the important role religion plays in the lives
of many Americans, it is all but certain that communities
will continue to put up religious displays
in public places. As a result, courts will continue to
wrestle with the same two seemingly conflicting principles that have arisen in past displays cases.
On the one hand, the Establishment Clause clearly
prohibits the government from favoring any one
religious creed or denomination, or from favoring
religion over nonreligious beliefs. On the other
hand, the Constitution permits the government to
acknowledge the historical significance of religion
in the nation’s history and culture.
Reconciling the need for government neutrality
with the notion that public spaces should be open
to at least some religious expression can be a difficult
balancing act for the courts. As the Supreme
Court’s decisions in the Ten Commandments cases
illustrate, the ultimate outcome usually depends on
the specific context of a display: its setting, language
and history. Inevitably, however, contextual
decisions lack the predictability that comes when
courts apply rules that have clear, well-defined lines.
But such rules might favor one core principle –
government neutrality or acknowledgement of
religion – at the expense of the other. Therefore,
courts have largely focused – and likely will continue
to focus – on the specific facts in each case,
in the hope that their decisions honor both principles
while still resolving the dispute at hand.
This report was written by Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law at George Washington
University Law School; David Masci, Senior Research Fellow at the Pew Forum on Religion & Public Life; and
Robert W.Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law & Religion at George
Washington University Law School.
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