Deadlock

As the senior associate, Thomas Riley had the first word. “Well, this is a clear Constitutional violation,” he said.

No surprise there, Millie thought.

“The motto comes from a Bible verse, Matthew 19:26. It’s a verse where Jesus Christ is talking about the salvation of souls. Well, if the Establishment Clause means anything, it means the government should not align itself with Jesus Christ, or any other religious figure. That’s what Ohio is doing with this motto. It should be struck down.”

Simple, clear, to the point. Millie had expected no less.

On Riley’s left sat the next associate in seniority, Raymond Byrne, a twenty-three- year member of the Court and a consistent textualist. Naturally, the press always put his name on the conservative side of the ledger.

“Surprise, surprise, I disagree,” Byrne said. There was good-natured laughter all around. Byrne, a glinty-eyed, third-generation Irishman, had the best sense of humor on the Court. “It seems to me that there is no difference between ‘With God All Things Are Possible’ and ‘In God We Trust.’ If the second passes Constitutional muster, then so does Ohio’s.”

And so on around the table they went. Millie kept track in her mind, and when all was said the view of the case split perfectly, 4-4, among the so-called conservative bloc and what the press called the moderates.

Justice Byrne, along with Justices Facconi, Johnson, and Parsons, were for the acceptability of the motto. Riley, joined by Weiss, Velarde, and the new Justice Atkins, thought it violated the Establishment Clause.

Then all eyes turned to Millie.

There was no avoiding it now. No place to hide. No bookcase that spun around into some secret chamber through which she could make an escape. Millie thought she could read the faces clearly. Riley looked especially gratified. He was a staunch separationist. He did not want any government, state or federal, to have anything to do with religion. He was clearly expecting Millie’s vote to be a favorable tie breaker.

On the other side, Ray Byrne looked as he always did in years past when religion cases came along. He would be on the losing side, and set to write another of his lengthy dissents. His face was set in anticipation, his pugnacious jaw thrust out.

For a moment that hung heavy and silent, Millie did not speak. She felt nerves exploding up and down her arms. She took a lingering sip of water.

Finally, she spoke. “The Establishment Clause says ‘Congress shall make no law respecting an establishment of religion.’ It seems to me we have to understand what that meant to the framers of the Constitution.”

She paused, flicking her eyes around the room. Already she could feel the thin tendrils of disquiet undulating from the moderates. She could understand the reason. No one had ever heard her say anything like this before. Going back to the framers’ intent was what a conservative judge would do. Indeed, Ray Byrne was leaning so far forward that his fighter’s chin almost touched the table. In keeping with tradition, however, no one interrupted her.

“I went back to some historical cases and materials,” Millie said. “I began with James Madison and Thomas Jefferson, worked up to our decision in Town of Pawlet v. Clark, from 1815, written by Chief Justice Marshall, and all the way to Zorach v. Clauson in 1952. You remember that Justice Douglas said there, ‘We are a religious people whose institutions presuppose a Supreme Being.’ ”

Justice Riley’s face was beginning to turn pink. Normally, the justices would be making casual notes on their vote sheets or legal pads throughout the conference. Now, not a single justice held a pen or pencil.

Millie felt lightheaded. Was it hot in the room? No, the air was cool, the circulation perfect. But the future of the Court hung in the balance, and Millie held the deciding vote.

“What is clear to me now,” Millie said firmly, “is that the original intent of the Establishment Clause was to prevent the institution of a national church. It was to prevent coercion. James Madison so understood it. But the clause was never intended to take out the expression of religious sentiment from the public square. Therefore I must conclude that the state motto ‘With God All Things Are Possible’ does not violate the United States Constitution.”

Thomas Riley slapped the table with his open palm. A resounding whap bounced off the burnished walnut walls of the conference room. It was like a shot, the bullet ripping into Millie’s chest.

Byrne, on the other hand, had a smile as broad as his chest. If eyes could dance, his were doing a jig with full orchestra.

“I must say,” said Riley, his tone civil but cool, and undergirded by a smoldering intensity, “that this is a rather drastic departure from your previous Establishment Clause position.”

Millie nodded.

“Might I remind you,” Riley said, “that for you to take this stance you must renounce all your previous opinions on the subject?”

“Of course I understand that,” Millie said.

“May I ask for your reasons then?” Riley snapped.

“Certainly,” Millie said. “This is not a question that can be decided without looking at the original intent of the Establishment Clause. In 1798 John Adams said, ‘The Constitution is made only for a moral and religious people. It is wholly inadequate to the government of any other.’ Justice Douglas echoed that sentiment in 1952.”

“Yes, yes,” Riley said, “but Justice Black wrote about the wall of separation in 1947.”

“In Everson,” Millie countered, “relying on a phrase in an obscure letter from Jefferson. Erecting a view of establishment based on such minor dicta was not good Constitutional law. It does not even reflect what Jefferson really meant. That can only be discerned by what he actually did. As president, for example, he used federal money to build churches and sponsor Christian missionaries. He established religious requirements for the University of Virginia. He was not a strict separationist by any means.”

“It’s a policy that works,” Riley said.

“Tom, our Establishment Clause jurisprudence has been pretty messy. We all know that. Maybe the founders had it right. In any event, can you honestly say any of them would have objected to a state having the motto ‘With God All Things Are Possible’?”

Millie paused, and Riley smoldered. She had not seen him this way in years. It troubled her. But she had to continue. “I must hold that it is time to move back to the original understanding of the Establishment Clause.”

Justice Byrne, who had been hanging on every word, shook his head. “I never thought I’d say this in a religion case, but Chief Justice Hollander, I agree with you.”

For a protracted moment silence was heavy in the conference room. The other justices seemed too stunned to say anything. They appeared to be calculating the effects of this development.

“I want a break,” Riley said, standing. Before Millie could say anything he was heading for the door. He slammed it behind him.

All of the justices looked at each other. In ten years Millie had never seen a justice storm out of conference. Ever.

“Well,” Justice Byrne said, “this has been an interesting afternoon.”

2