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The Pleasant Grove court wisely forgoes such arguments with fresh new arguments from democracy and tradition that do not deny or dilute the religious qualities of these symbols. The court leaves it up to elected government officials to reflect and represent the views of the people, including their religious views. It leaves it to the people to debate and decide whether the government's representation of their views is adequate or outmoded. Courts will step in only if the government coerces citizens to accept these religious views, or if the government's speech violates privacy, endangers society, or violates the Constitution. A merely passive display of a generic religious text is not enough to trigger a judicial intervention. Had the city put up a flaming KKK cross, the courts would have jumped in immediately. This strikes me as a healthier form of democratic rule than the traditional system of giving a single citizen a "heckler's veto" over majoritarian views.

The age of a religious display should also play a part in the delicate calculus of its constitutionality. The longer a religious symbol has stood open and unchallenged in the public square, the more deference it deserves. "If a thing has been practiced for 200 years by common consent," Justice Holmes once wrote, "it will take a strong case for the [Constitution] to affect it." Over time, religious symbols become embedded in the culture and tradition of a community and are thus harder to remove. And over time, the right to challenge them diminishes in strength and becomes harder to press. We recognize the power of time in our historical preservation and zoning laws that "grandfather" various old (religious) uses of property that do not comport with current preferred uses. We also recognize this in our private property laws of "adverse possession": an open, continuous, notorious use of a property eventually will eventually vest in the user. Those legal ideas should have a bearing on these religious symbolism cases, leaving older displays more secure but new displays more vulnerable. We also recognize the pressure of time in our laws of pleading and procedure. We set statutes of limitations on many claims and we penalize parties for sitting too long on their rights. These legal ideas should also have a bearing in these religious symbolism cases. Challenges to old government actions concerning religious symbols should be harder to win than challenges to new government initiatives. We don't set statutes of limitations on constitutional cases, of course. But surely once a public religious display has reached its proverbial "40 years," we would do well to leave it alone.

John Witte Jr. is director of the Center for the Study of Law and Religion and the Alonzo McDonald Distinguished Professor at Emory University.

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Christianity Today's earlier coverage of Ten Commandments displays and related controversies includes:

Ten Commandments Displays Head Back to Supreme Court | Can a display be government speech without the government actually endorsing the message? (Nov. 12, 2008)

Broken Tablets The Court splits the baby and denies the rule of law. Feel united yet?
A Christianity Today editorial (August 2005)

God Reigns—Even in Alabama | Let's not make the Commandments into a graven image.
A Christianity Today editorial (October 2003)

Hang Ten? | Thou shalt avoid Ten Commandments tokenism. A Christianity Today editorial (March 2000)

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March (Web-only) 2009, Vol. 53