The High Court And The Church-State Wall: Betsy Ross, Meet Sandra Day O'Connor

"If Breyer and Justice Anthony M. Kennedy — a swing vote in religion cases — don't stand up for the 1st Amendment," the newspaper observed, "[Salazar] could blow a gaping hole in that wall."

Prayers and patriotic songs reverberated through the air as I made my way to the Supreme Court yesterday morning. I exchanged a reticent glance with the police officer stationed outside the Library of Congress (just a block away), and he chuckled, as if to read my mind.

"Things are getting crazy over there," he warned, as I dug my notepad from my bag.

"Big case," I responded.

While I was just arriving at the court, Barry Lynn and a number of my other Americans United colleagues had already settled inside and were veraciously scribbling notes on the arguments being heard in Salazar v. Buono, trying to catch each word while deciphering the nuances in the justices' questions.

I was tasked with staying outside to participate in the media frenzy. Camera crews had all arrived before nine, and the line of visitors to see the case stretched down the intimidating staircase leading to the courtroom doors.

Some, who journeyed from near and far to hear the court discuss the placement of religious symbols on public property, were eager to share their stories and opinions with me. I met a number of veterans, a group of lively students, a couple of pastors, tons of tourists and even a crank or two (one woman, dressed in colonial garb and clutching a Bible to her chest, insisted that she was the Betsy Ross, standing beside the Supreme Court praying for the souls of the justices inside).

And while people all had different opinions about the constitutionality of displaying an eight-foot cross atop a rock outcropping on public property inside California's Mojave National Preserve, everyone seemed to agree that there was a lot at stake.

The case represents the newly minted Justice Sonia Sotomayor's first foray into religious liberty law, and it is also an opportunity for swing justices like Anthony Kennedy to reaffirm or reject church-state precedent.

In 2005, in two separate 5-4 decisions handed down on the same day, the Supreme Court struck down the posting of the Ten Commandments in a Kentucky courthouse while upholding a Commandments display on the grounds of the Texas Capitol.

"The court has found no single mechanical formula that can accurately draw the constitutional line in every case," explained Justice Breyer, the only justice to vote for both, seemingly contradictory, results.

Such difficulty in understanding the scope of the First Amendment's church-state provision leaves cases like Salazar up in the air, and we, for good reason, are not alone in worrying about the direction in which the court seems to be heading.

In a panel sponsored by William and Mary Law School last Saturday, retired Supreme Court Justice Sandra Day O'Connor spoke about her regret over the fact that some of her decisions "are being dismantled" by the current court.

"If you think you've always been helpful, and then it's dismantled, you think, 'Oh dear,'" explained O'Connor, just days before the court was set to hear Salazar.

Helpful O'Connor was, at least on many church-state cases.

In both of the 2005 Commandments cases, O'Connor voted to strike down the government-sanctioned religious displays and uphold church-state separation. In her concurring opinion in the Kentucky case, she wrote, "Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"

Many fear that her replacement, Justice Samuel Alito Jr., may be -- as the Los Angeles Times put it -- "less supportive of the idea of a wall of separation between church and state.

"If Breyer and Justice Anthony M. Kennedy -- a swing vote in religion cases -- don't stand up for the 1st Amendment," the newspaper observed, "[Salazar] could blow a gaping hole in that wall."

O'Connor is not the only one worried about the possible erosion of judicial precedents that she worked so diligently to defend. In Monday's USA Today column on religion, Baptist minister and church-state attorney Oliver Thomas voiced the concerns of many separationists about the direction of the high court and the country.

"Rather than watering down our religious icons or turning them into universal secular symbols, I have a better idea," asserted Thomas, "keep Jefferson's wall."

We couldn't agree more strongly.

As Betsy Ross and her friends cleared out from the court property, AU assembled its team for our short walk back to the office. We did so understanding the gravity of the situation we are now tasked with: we must defend the wall of separation in a time when many members of the high court may not understand its breadth, strength, relevance and history.

Note:: Don't forget to watch Rev. Barry Lynn debating the Mojave cross case on CNN's Lou Dobbs Tonight.