It is a tall order, but the Supreme Court needs to bring clarity to its murky doctrines relating to government speech and religious symbols. It should free its own focus from disputes about park decorations. Religious liberty is, as has often been observed, our “first freedom,”and it faces many pressing challenges. In Connecticut, for example, several legislators recently proposed ”” but then put on hold for now ”” a bill that purported to regulate the internal affairs and restructure the governance of the Catholic Church. Such a law would be about as unconstitutional as a law can be, and it is hard to imagine a more glaring affront to religious freedom. Clearly, we cannot afford distractions, but too often, that is what the court’s Ten Commandments and Nativity scene cases have become.
The point is not that the line between a government’s choice about its own message and official discrimination against unpopular private messages is easy to draw, or unimportant. We should be concerned that officials’ decisions about what the government will, and will not, say can be used, as Justice Alito recognized, “as a subterfuge for favoring certain private speakers over others.” More generally, it is important to appreciate the weaknesses, as well as the strengths, of the “fortress” image, and to be sensitive to the fact that the government shapes ”” sometimes subtly, sometimes obviously ”” the marketplace of ideas by its own speech as well as by regulation.
At the same time, we should, in these and similar cases, keep our eye on the religious-freedom ball. The separation of church and state, correctly understood, is a powerful, crucial protection for genuine diversity and liberty of religious conscience. Its proper goal is not to put religion in its place but to keep the state in its place.