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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