Recently, I visited the New York State Courthouse here in Jamaica, Queens. For readers who don’t know, Queens is one of New York City’s outer boroughs. It is the most ethnically diverse county in the United States, perhaps the most ethnically diverse place in the entire world. About half its population of 2.3 million is foreign born. More than half speak a language other than English at home. About 40% of its residents are white; Asians and African-Americans each make up about a fifth of the population; Latinos a bit more. Statistics on religious affiliation are harder to come by, but apparently about half of the borough’s residents are Christians; of them, Catholics make up the largest percentage, about one-third of the total population. As to the other 50%, Queens has significant numbers of Jews, Muslims, Hindus, Sikhs, Buddhists, and people without formal religious affiliation—the Nones. In terms of religious and cultural variety, Queens has it all.
Given the ethnic and religious diversity of Queens, a work of art I saw in the Queens courthouse surprised me. Decorating the building’s central, ceremonial staircase are a pair of two large WPA-style murals, executed when the courthouse was built during the Great Depression. They make up a unified work. The one on the left, titled “Mosaic Law” (above) shows a crowd of Hebrews surrounding Moses as he descends from Mt. Sinai with the tablets containing the Ten Commandments, written in Hebrew script. The one on the right, titled “Constitutional Law” (below) shows a crowd of historical figures—Washington, the Framers, and Chief Justices from John Jay to Charles Evans Hughes—gathered around a stone plaque with the words of the Preamble: “We the People.”
In one sense, of course, the murals should not have surprised me. Displaying the Ten Commandments in courthouses is an American tradition. It has become an extremely controversial one, however. Litigants have brought numerous constitutional challenges in the last few decades. Courts have reached different conclusions, based largely on the facts of specific cases. About 10 years ago, the US Supreme Court ruled that the display of the Ten Commandments in one Kentucky courthouse violated the Establishment Clause under the so-called “endorsement test.” A reasonable observer, the Court held, would perceive the display as an impermissible, official endorsement of religion. Such an endorsement would send a message of exclusion to non-adherents and make them feel like outsiders in their own community—like disfavored, second-class citizens.
I stood on the staircase for a while and watched people go up and down. Aside from me, no one seemed to notice the murals at all. And I wondered, how could it be, in a place as religiously diverse as Queens, that no one had objected? How could it be that no one had claimed that the murals made him feel like an outsider, a second-class citizen? With thousands of people from different religious backgrounds passing by these murals every day, surely someone would have taken offense and brought a lawsuit. Were people too polite or intimidated to complain? That hardly seems possible, not in Queens. And if someone did bring a constitutional challenge, wouldn’t it have a good chance to succeed? What explains the quietude—the dog that doesn’t bark?
It seems to me there are two explanations. First, it’s quite possible that people in Queens, even the many people from religious traditions other than Christianity, Judaism, and Islam—all of which venerate the Ten Commandments—do not find the display at all offensive. They likely accept it as the tradition of the society in which they have chosen to live. Many of them have immigrated here at great personal cost and are not put off by American customs. Peter Berger and others have written about this phenomenon in the European context. Although European elites often argue that religious minorities find public Christian displays insulting, he explains, little evidence exists that the minorities themselves actually feel offended. Berger describes this misguided, or pretextual, solicitude for religious minorities as the “‘battering ram’ approach to policy making: secular elites make use of other faith communities in order to further their own—frequently secular—points of view.”
Of course, there are plenty of secular elites in New York City, and many of them are lawyers. So why has no one brought a lawsuit over the display at the Queens courthouse? Here we come to the second explanation: such a lawsuit would very likely fail. For one thing, notwithstanding its earlier decisions, it’s not clear that the Supreme Court would continue to apply the endorsement test to courthouse displays of the Ten Commandments. A couple of terms ago, in the Town of Greece case, the Court applied a different test to uphold the constitutionality of official, legislative prayer. Such prayer is constitutional, the Court said, because it is an important part of American tradition—and also because it does not coerce listeners to participate. Courthouse displays of the Ten Commandments are part of American tradition as well, and they also coerce no one. If the Town of Greece test applies, Ten Commandments displays would be constitutional as well.
The Court is notoriously unpredictable in Establishment Clause cases, though, and it could well continue to apply the endorsement test to courthouse displays. Even so, it’s unlikely the Queens murals would be unconstitutional. True, an observer could perceive a religious message. Perhaps the implication is that our fundamental law is of a piece with its divine predecessor, and that we, like the ancient Hebrews, are united by our worship of God. But observers could draw a variety of other messages as well. One very plausible interpretation is this: our Constitution is part of the great tradition of Western law, in which the Ten Commandments play a vital role. Another would be, these are two parallel episodes of lawgiving: Just as the ancient Hebrews were a community bound by a received law, so are we Americans today—although our law comes, not from God, but from the people itself. Perhaps there is no special meaning at all. Perhaps the artist was simply trying to dignify the building in a way that people of the time would find familiar and appropriate.
In short, the mural is not clearly an endorsement of religion. Moreover, it has been there for about 70 years now. As Justice Breyer reasoned in one of the Ten Commandments cases, the fact that a display has gone unchallenged for decades suggests that people do not perceive it as an insult or a religious endorsement. To remove the mural now, on the ground that it impermissibly endorses religion, would suggest that government has an affirmative hostility to faith—a suggestion bound to insult believers and cause even greater social tension than allowing the mural to remain. Although the Court might not allow the mural to be installed in a courthouse today, the fact that it is already in the Queens courthouse gives it a kind of grandfathered status.
So, it seems likely the mural will remain. If you’re in the neighborhood, go take a look. You might also visit the nearby Rufus King Museum, the home of one of the Framers of the Constitution—though not, as far as I can tell, one of the Framers depicted in the mural—and the last Federalist candidate for President of the United States. What he would have thought of the murals’ constitutionality, I’m pretty sure I know.
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Constitutional Experiment
