Justices rule both ways on displays
The judges upheld the Ten Commandments display in Texas but not in Kentucky.
WASHINGTON -- A sharply divided Supreme Court issued a split decision on the public display of the Ten Commandments on government property Monday, forbidding framed copies on the wall of two rural Kentucky courthouses, while approving a 6-foot-tall granite monument on the grounds of the state capitol in Austin, Texas.
In a pair of 5-4 votes, the court ruled the Kentucky commandments were put up six years ago with the unconstitutional purpose of favoring monotheistic religion, but the Texas monument, put up in 1961, was a less blatantly religious statement tinged with secular historical and educational meaning as part of a group of similar markers on the grounds.
The decisions were announced on a day of high drama at the court, with many of those in attendance waiting -- in vain, as it turned out -- for a retirement announcement from Chief Justice William Rehnquist. Justices on both sides of the Ten Commandments issue aimed strong criticism at each other as they read their opinions from the bench.
Yet for all the intensity, the net result of the decisions -- the first on the Ten Commandments from the court in 25 years -- might have been to leave the law more or less unchanged, legal analysts said.
The court did not scrap complicated legal balancing tests it has used to evaluate the constitutionality of governmental religious statements, as some supporters of the public display of the commandments had urged -- nor did it take the opportunity to rule out the official embrace of popular religious symbols, as some opponents of the displays had hoped.
The decisive vote in the cases was cast by Justice Stephen Breyer, who sized up each one in terms of its particular history and his view of the "basic purposes" of the First Amendment, which prohibits the creation of a state religion.
In a separate concurring opinion in the Texas case, Justice Breyer found it "determinative" that the Texas monument, donated by the Fraternal Order of Eagles, had stood for 40 years without anyone's complaining, whereas the Kentucky displays sparked litigation almost as soon as they were first put up in 1999.
"This [Texas] display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive," Justice Breyer wrote.
However, he added, referring to the Kentucky displays, that "in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this long-standing, pre-existing monument has not."
Each side in the case claimed victory. Steven R. Shapiro, legal director of the American Civil Liberties Union, whose Kentucky affiliate had challenged the courthouse displays, said, "A majority of the court in both cases has now clearly reaffirmed the principle that government may not promote a religious message through its display of the Ten Commandments."
Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative Christian legal organization that backs the displays, said the decision means many similar monuments provided to state and local governments by the Fraternal Order of the Eagles, along with long-established paintings or sculptures of the Ten Commandments, are probably on safe ground.
The court is expected to announce today whether it will hear challenges to the display of the Ten Commandments on school property in two Ohio locales; a Harlan County, Ky., display on school classroom walls; and a Richland County, Ohio, judge's posting of them on his courtroom's wall.
"The road map is keep your mouth shut about the religious purpose, talk about secular and historical things, and you can probably get away with it," said Douglas Laycock, a professor of constitutional law at the University of Texas.
Determining role of religion
Certainly the two cases proved divisive for the court, with Justice Antonin Scalia reading a passionate dissent on the Kentucky ruling from the bench. Scalia said the decision was inconsistent with the Founders' views and "ratchets up this court's hostility to religion."
Justice Scalia was joined in full by Justice Rehnquist and Justice Clarence Thomas, and in part by Justice Anthony Kennedy.
However, Justice David Souter, who wrote the opinion in the Kentucky case, joined by Justice Breyer and Justices John Paul Stevens, Sandra Day O'Connor and Ruth Bader Ginsburg, warned listeners in the courtroom that Scalia would "allow government to espouse the core religious beliefs of some religions."
In his written opinion, Justice Souter argued that strict official "neutrality" toward religion was the best antidote to contemporary culture wars.
"We are centuries away from the St. Bartholomew's Day Massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable," he wrote. "This is no time to deny the prudence of understanding the [First Amendment] to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual."
Each of the two Kentucky counties, McCreary and Pulaski, first posted copies of the King James version of the commandments in their respective courthouses in the summer of 1999.