Split decisions on Ten Commandments

Stephen Breyer is the unlikely swing vote as the Supreme Court goes this way and that.

By Tim Grieve
Published June 27, 2005 4:44PM (EDT)

It's going to take us a while to get through the 10 separate opinions the Supreme Court issued today in two cases concerning public displays of the Ten Commandments, but here's what we know so far: Sometimes it's OK to post the Ten Commandments on public property, and sometimes it's not.

In McCreary County v. ACLU, the Supreme Court ruled 5-4 today that displaying gold framed copies of the Ten Commandments in the lobbies of two Kentucky courthouses violated the First Amendment's prohibition against government establishment of religion. But in Van Orden v. Perry, the Supreme Court ruled 5-4 today that displaying a large granite version of the Ten Commandments on the grounds of the Texas State Capitol did not violate the Establishment Clause.

The difference? Supreme Court Justice Stephen Breyer.

In McCreary, Breyer joined with John Paul Stevens, David Souter, Sandra Day O'Connor and Ruth Bader Ginsburg in holding that the Kentucky displays violated the Establishment Clause. In Van Owen, he joined with William Rehnquist, Anthony Kennedy, Antonin Scalia and Clarence Thomas in holding that the Texas display didn't. "If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases," Souter explained. "And in such cases, I see no test-related substitute for the exercise of legal judgment. That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the [First Amendment], and it must take account of context and consequences measured in light of those purposes. . . . [N]o exact formula can dictate a resolution to such fact-intensive cases. "

We could guess what the religious right is going to make of Breyer's analysis, but we really don't have to. Antonin Scalia has told us already. In his dissent in the Kentucky case, Scalia wrote that it's judges' opinions -- and not context and consequences -- that change from case to case. "In a revealing footnote, the court acknowledges that the 'Establishment Clause doctrine' it purports to be applying 'lacks the comfort of categorical absolutes,'" Scalia wrote. "What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not." Then, in words that could have come straight from the mouth of a James Dobson, a Tom DeLay or a Bill Frist, Scalia said that the majority's decision in the Kentucky case was just the latest attempt to "ratchet up the Court's hostility to religion."

To be fair to Breyer, though -- and we know that's not Scalia's overriding purpose -- the Ten Commandments cases decided today arose from decidedly different sets of facts.

In the Kentucky case, the Ten Commandments were initially posted in courthouses by themselves. When the ACLU sued, county officials added other documents to their displays, highlighting the Bible's role in American history and noting, among other things, that the Kentucky legislature had once adjourned "in remembrance and honor of Jesus Christ" and that local judges supported Judge Roy Moore in his own Ten Commandments fight. When a federal court ordered these displays removed, the officials responded by putting up new displays on the "foundations" of American law that featured the Ten Commandments surrounded by framed versions of the Magna Carta, the Declaration of Independence and the like.

By the time they got to the Supreme Court, the county officials were arguing that the second version of the display -- the one with talk of Jesus Christ and Judge Roy Moore -- was "dead and buried" and shouldn't be considered. But Justice David Souter, writing for the 5-4 majority in McCreary, said the various iterations of the display revealed that county officials had an impermissible religious purpose in putting up the Ten Commandments in the first place. The counties' "refusal to defend the second display is understandable," Souter wrote, "but the reasonable observer could not forget it."

In the Texas case, the six-feet tall granite monolith depicting the Ten Commandments was given to the state more than four decades ago by a private civic group whose purposes were primarily secular. Moreover, the monument is just one of 38 on the capitol grounds that commemorate "the people, ideals and events that compose Texan identity." "The setting does not readily lend itself to meditation or any other religious activity," Breyer wrote. "But it does provide a context of history and moral ideals. It (together with the displays inscription about its origin) communicates to visitors that the state sought to reflect moral principles, illustrating a relation between ethics and law that the states citizens, historically speaking, have endorsed. That is to say, the context suggests that the state intended the displays moral message -- an illustrative message reflecting the historical "ideals" of Texans -- to predominate."

For Breyer, those distinctions were enough to set one display of the Ten Commandments apart from another. And while groups like People for the American Way wish the outcome in the Texas case were the same as that in the Kentucky case, they mostly seemed relieved that the split decisions weren't something worse. "The affirmation of the constitutional principle of government neutrality toward religion is the most important aspect of these rulings," PFAW president Ralph Neas said in a statement. "While we disagree with how the Court applied that principle to the facts in Texas, we are very pleased that the court has rejected efforts to dismantle church-state separation."

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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