Marci Hamilton, a Professor of Law at the Benjamin L. Cardozo School of Law at Yeshiva University in New York, writes uncommonly clearly, and calmly, meaning level-headedly, on issues related to the First Amendment's guarantees:
Congress shall make no law
- Respecting an establishment of religion, or
- Prohibiting the free exercise thereof.
The First Amendment speech and press guarantees were first declared binding on the States via the Fourteenth Amendment (FA) in Gitlow v. New York (1925), opening the door to the "selective incorporation" of the rest of the FA and, over many years, almost all of the Bill of Rights including the above.
Thus when a state, such as Texas in the Ten Commandments case, argued last week, does an act that seems to endorse either religion or a particular brand of religion such as Christianity, Judaism, or some combination of the two, in claimed violation of the Establishment Clause, the First Amendment clauses, above, are where the analysis begins.
This was the Framer's attempt to define what they sought to protect. Their effort was based on bloody experience in England, where the state religion, embodied by the monarch, flipped seven times in ten years beginning with Henry VIII (first he was Catholic, and then, breaking with Rome over his marriage to Anne Boleyn, Protestant), then his daughter the Catholic "Bloody" Mary, and finally the Protestant but trying to adhere to the middle of the road Elizabeth I.
The Framers were well familiar with the English Civil War of the Seventeenth Century, and also the religious-dynastic wars on the Continent following Martin Luther's initiation of what we call the Protestant Reformation (which produced all the later conflicting denominations). The Catholic reaction, called the Counter-Reformation, added to the gore.
Prof. Hamilton observes that there has, in effect been a paradigm shift in the way the subject of religion in national life must, or should, be viewed. At an earlier stage, when the influence of the first European settlers was the greatest, they were overwhelmingly Christian. Native Americans didn't count and Jews were not present. At the time of the Constitutional Convention, in 1787, while there were some Jews living in America, the Framers seemed more intent on creating an environment safe for the the historically competing Christian sects, that is the warring Protestant denominations among each other, and Protestant vs. Catholics from the time of England's Henry VIII, to worship side-by-side without getting tangled in each others hair.
Irish Catholics immigrated in large numbers following the 1848 potato famine, followed by later waves of Italian, Polish, and other largely Catholic ethnic groups. From 1890 -1910 Jews from Poland-Russia emigrated in large numbers fleeing service in the Czar's army and pogroms (religious brigandage).
Steady immigration from all over the world since 1965 has introduced the country to new, for the U.S., religious groups including significant numbers of Muslims.
The U.S. seems also to have developed generally a heightened consciousness that it is no longer socially required to identify oneself as a member of any religion, or to profess a belief in any supernatural power or god. One is free to believe or not. Atheism (non-belief in God or a god) thus stands theoretically on an equal footing legally with religion despite remaining politically suspect or incorrect, depending on who is keeping score.
The national frame of reference, i.e. public opinion, has thus changed significantly over the generations as we draw further from the Christian orthodoxy of the pre-Founding generations to the Founding, and down to the present. We thus are required to be more sensitive to those who do not wish to see themselves marginalized by having government endorsing the other guy's religious views while ignoring our own religious sensibilities. The further we proceed as we have, the less we wish to see government including some and excluding others in the name of religion. The underlying notion is that government, like the major political parties, is a big tent under which a variety of differing, even contrary views are welcome, so long as they get along in harmony in pursuit of some larger goal.
The fact that the new placement of a religious icon such as the Ten Commandments in city hall or a public park or university sparks such controversy demonstrates that we are becoming more sensitive, and more uncomfortable, to the feeling that government is being asked to revert to an earlier day when to challenge public feeling ran against making an issue over such practices and rocking the boat for fear of a backlash against a protesting minority.
That's probably why the erection of large crosses over cities such as San Francisco, San Rafael, and San Diego stood for so long. San Diego is removing theirs as we speak. San Francisco avoided the issue by selling park land on which a huge concrete cross has stood for decades to a private religious group after a court fight held the cross may not stand on public land.
Now we no longer stand for having the other guy's religious symbols thrust in our faces because we're more willing to stand up to religious bullying without fear of backlash because the courts are more respectful, and hospitable, to making the relevant objection. If you want your views protected, you must respect mine. It's no longer a one-way street where heads-you-win, tails-I-lose, so long as you belong to the dominant denomination, or any denomination.
See the first of two of Prof. Hamilton's Findlaw article's here. The second has not been published yet.