Janus is the two-faced Roman god of gates and doors (janua or ianua, hence January), of beginnings and endings. January is the the beginning, opening, or 'doorway' month of the year.
The face of Janus appeared on the portal (gate) of the Forum Romanorum, through which Roman legionnaires marched off to war, according to Micha Lindemans of the MMV Encyclopedia Mythica, found online. He was a god to whom the Romans regularly sacrificed.
The idea seems to be one of vigilance, having eyes in back of your head.
But we also use the term "two-faced" in a different, pejorative sense, to mean hypocritical, someone who'll smile to your face but stab you in the back when you're not looking. Maybe that's not Janus, I dunno.
The reason this comes up is because Chief Justice William H. Rehnquist uses the image of Janus not to reconcile but to describe the Court's conflicting and otherwise incomprehensible Establishment of Religion cases leading up to Van Orden v. Perry (the Governor of Texas) (June, 2005), the harder and more controversial of the two new Ten Commandments cases decided last week, the other being McCreary County, Kentucky v. ACLU of Kentucky (June, 2005).
In McCreary, the legislature was on record as trying to promote religion but then tried to cover it up, which the Court saw through with little difficulty, making this the easier case in which to bow to the wall of separation of church and state.
The hard case, with Justice Breyer, who concurred in allowing the display, is the Texas case, where the private club, the Eagles, presents, in 1961, a six foot tall, three foot wide, monolith in which is carved an image of the Ten Commandments. These, you'll recall were allegedly handed by God to Moses on the mountain, making Moses not only a religious leader (religious) but a lawgiver (secular). So if you erect an image of Moses giving the Ten Commandments to the (reluctant) people, which is he, religious or secular? It seems a little two-faced, this argument, doesn't it? But that's not Rehnquist's point.
Rehnquist points to seemingly conflicting lines of cases in which the court allows, as against an Establishment Clause objection, a state funded chaplain to open legislative sessions with a prayer to God (Marsh v. Chambers) but prohibits putting the Ten Commandments in public school classrooms, as being an effort to promote religion. Justice Clarence Thomas feels that the rule testing for an establishment of religion ought to be whether the manifestation is coercive. He feels that being forced to look the other way isn't such a big deal. While that argument doesn't appeal to me, his other one does.
Thomas argues that existing doctrine fails to account for the true feelings of believers and non-believers.
Non--believers in a particular religion or any religion don't appreciate being forced to participate in, or observe, officially sanctioned religious rituals including saying "under God" in the Pledge.
True-believers feel that restricting official religious observances, something that has been going on for a long time in this country conveys the unequivocal message that the nation has become, officially, hostile to religion.
Those are two difficult ideas to reconcile. Coercion is Thomas's attempt, but it would allow a lot more religious observances over the wall, something non-believers cannot tolerate, especially if coercion is so narrowly defined as to all more and more "you-can-just-ignore-it" observances if you don't like it, as the court apparently decided that Mr. Van Orden should do in Texas. He's the lawyer who sat in a library and drew up his own case that made it to the Supreme Court. The fact that he walked past the monolith for years before suing was held against him, and appears decisive. So had many other Texans, for decades. Apparently they didn't regard it as a real shoving-down-your-throat of religion.
Justice Breyer resorts to another image that I admire. He says we must not be afraid of shadows, and Van Orden's objection was shadow, not substance, by a hair.
This is two religion cases dumped in part because the plaintiff was regarded generally and by a majority of the Court as a nuisance or a pest, Michael Newdow and Mr. Van Orden. That's an opinion, but I think it correct. Bring us real cases with real plaintiffs where the people are up in arms, seems to be the message, not these nuisance cases where the public seems to be dealing with alleged intrusions on the right to be let alone in religion.
In other words, if religion isn't being forced down ones throat, its probably going to be allowed, under Van Orden. That seems to be Thomas's test, and I may be overstating its breadth.
At any rate, I took some comfort in C.J. Rehnquists admission that the Court's Establishment was in conflict and apparent disarray, being confusing to courts, lawyers, and the public. The Three Part Lemon Test is frequently ignored as being inapplicable, as in the Ten Commandments cases. The only way Rehnquist can explain the confusion is to say that the doctrine looks in two directions, like Janus, and the Court must continue to look in two directions, distinguishing secular invocations of religious themes for civic and humanitarian purposes from efforts to shove religion down the throats, eyes, and ears of those who don't want to be bothered. John 3.16, take note.
More to come...
Meanwhile, remember, we're all non-believers in something!
Even you.
Especially you.
And note Justice Steven's clear-eyed dissent, in which he says this block of granite in front of the Texas Capitol, the Seat of Government of Texas, is as religious an endorsement by government as you can get, except for all the other ways. Government is supposed to be neutral as between different religious groups or sects within the same general religion, and between religion and non-religion. Thus the Protestant branches, the Catholics, the Jews, the Muslims, the Athiests, the Agnostics, the polytheists, and the non-theists, all stand equal before the Government. If God has a preference, that's up to God, not the legislature. Stevens cites cases in which each of these points has been the deciding factor. Why wasn't it decisive here?
Because of a few votes, and I'm still reading the opinion, all 43 pages of it. Some people may be able to read it all in one bite, but not this kid. I have to digest things slowly, and stop and think, and let matters percolate through my brain, letting those thoughts-while-shaving pop up, as though I had no control over what I think, which I never claimed that I did, until after I uttered the thought, and even then, here, everything you read is subject to change without notice based on circumstances, further reflection, correction, emendation, and anything else I happen to find a good excuse or reason.
Stay tuned.
Further reading of Van Orden and McCreary suggests that the two main antagonists are the very clear, hard thinking Justice John Paul Stevens, 85, the elder statesman of the Court, and Justice Antonin Scalia, the wild-swinging sword-weilder on the Court, a veritable St. Paul, the saint who is always depicted with a sword, just as St. Peter is always shown with a key, and St. Sebastian with arrows sticking out of him as a martyr.
The issue for Scalia is that since he's a religious guy and very comfortable in it, he doesn't seem to want to think that the fact that other people are uncomfortable with it when government gets into the act should make any difference. It's easy for him, and Justice Kennedy, who also has written so suggesting, that folks like this, strange folks, that is, who don't like religious displays can just ignore it when they show up on government premises.
Now the Court says that it makes a difference as to what kind of government premises a religious display or observance occurs on, or in. Can you think of some varying degrees of government sponsored religious activity that will or will not offend your sense of how much separation between church and state, if any, should be allowed? After all, we do have a prohibition on government "establishing" any religion. The Framers were familiar with all the religious wars in Europe over the several centuries predating our Founding. It was Baghdad with fire and sword instead of explosives. The 30 Years War 1618-1648 (Treat of Westphalia, which ended the religious wars between Protestandt and Catholic on the Continent) had been just the latest.
The St. Bartholomews Day Massacre, Paris, 1543(?) was particularly impressive, with French Catholics rampaging against Protestants (the Founders were mainly Protestant). Those who weren't murdered, man, woman, and child fled or went underground. Huguenots they were called. They fled to Brussels and London, causing a technological brain-drain to France and building up the weaving industries of the Netherlands, especially the later Belgium, and of Britain.
In my natal community of Staten Island, N.Y., we had an area called Huguenot, presumably settled by those who fled, with names like Seguine and Dissosway. S.I. had been part of the New Netherlands Dutch Colony with names such as New Dorp (New Town) and Kill Van Kull, kill being a stream.
Legend has it that an old Dutch sea captain saw the place from his poop-deck and said, "Is dat an Eylandt?" Hence the name. Either that or the Island was named after the Staten (States) General of the Netherlands. You can guess which version we prefer.
But we were talking about government hostility to religion as Justice Scalia, joined by C.J. Rehnquist, among others see it.
I don't see why, or maybe I do, politically, why the U.S. cannot state as a matter of policy, beyond the words of the First Amendment, that this country welcomes people of all religions or no religion so long as they behave themselves, for the reason that to prevent competition and strife among religious groups, there need be no applying for permits to put up displays on government property.
What property? This goes back to that question posed above, which we'd better address.
The Court allows prayers at the opening of Congress by the Congressional Chaplain, who is paid by Congress.
The Court doesn't allow prayers in public schools since public school students are compelled to attend school and are a captive audience. Coercion is the objection, and the test, for Justice Thomas.
Mangers and creches on City Hall at Christmas are prohibited as government endorsements of particular religions.
Justice O'Connor justified religious invocations in the oratory of government statesmen on solemn occasions, in the Newdow (2004) "Under God" standing case on the ground that religious terms and cadences added solemnity the way no other language can in English.
The military employs full-time chaplains of various major religions to enable service men and women to exercise their right to practice their religion.
Prisons provide accommodations for religious services. See Cutter v Wilkinson (2005), the RLUIPA case, if I have that right. Congress provided an accommodation for institutionalized persons in that act, which was upheld as to constitutionality this Term. RLUIPA stands for Religious Land Use and Institutionalized Persons Act, for which, see Cutter.
In the Ten Commandments, the monument in Texas was in the park surrounding the Texas state capitol. In the Kentucky cases, the Commandments were in the form of framed documents displayed in the government building at the county seat.
So we've got to be concerned not only about what kind of message is being advertised or endorsed, but it's place, the motives or impetus animating the display and why it was brought now or at the time. The Court will look to the record of discussion and debate, much to Scalia's chagrin. He comments that the less said the better, for if anyone charges that this display is motivated by a desire to shove religion down throats, that may be enough to kill it.