Supreme Court offers split decisions in Ten Commandments cases

WASHINGTON (ABP) -- The U.S. Supreme Court offered split decisions June 28 on an issue that often splits Americans -- display of the Ten Commandments -- ruling one such display in Texas was appropriate while two different displays in Kentucky were not.

The court, itself closely divided on the issue, said whether or not a governmental display of the Ten Commandments is constitutional depends largely on the purpose of the display.

Handing down the final opinions of their 2004-05 term, the justices offered 5-4 decisions in two cases -- one holding a Ten Commandments display at a Kentucky courthouse unconstitutional, the other concluding a similar display on the grounds of the Texas State Capitol does not violate the First Amendment.

Almost nobody on either side of the complex and emotional debate was completely happy with the rulings, which offer this court's latest interpretation of the First Amendment's establishment clause, which prohibits laws "respecting an establishment of religion."

But taken together, the decisions appear to maintain and strengthen a principle previously adhered to by the court -- government neutrality toward religious messages.

"Our cases, Janus-like, point in two directions in applying the [First Amendment's] establishment clause," Chief Justice William Rehnquist said, authoring an opinion in one of the cases. "One face looks toward the strong role played by religion and religious traditions throughout our nation's history.... The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom."

The cases stem from conflicting decisions in lower courts on Ten Commandments displays at the Texas Capitol in Austin and in a pair of Kentucky courthouses.

In the Texas case, Van Orden vs. Perry (No. 03-1500), the justices ruled 5-4 that the display was constitutional. Thomas Van Orden, a homeless man and former attorney, had sued the state of Texas to have the monument removed from its spot between Texas' Capitol and Supreme Court building. The 5th U.S. Circuit Court of Appeals upheld the display, noting it had secular purposes in teaching about the history of the state's legal system and in honoring the fraternal organization that donated it to the state in 1961.

A majority of the U.S. Supreme Court -- Chief Justice William Rehnquist and associate justices Stephen Breyer, Anthony Kennedy, Antonin Scalia and Clarence Thomas -- agreed, saying the display does not violate the First Amendment. Viewed along with other monuments on the Texas Capitol grounds, they said, the monument can be seen as primarily an acknowledgement of the role that religion and morality played in the history of Texas.

"Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause," Rehnquist wrote.

Previous Supreme Court decisions require that governmental references to religion have some secular purpose, such as the teaching of history, behind them or be so minimal or generic in their religious content as to be insignificant.

While Breyer agreed with his four colleagues that the display is constitutional, he qualified his agreement. He issued a concurring opinion limiting the scope of the reasons he finds the Texas display constitutional and maintaining the court's previous precedent on such church-state issues. Breyer said his opinion relies "less upon a literal application of any particular test than upon consideration of the basic purposes of the First Amendment's religion clauses themselves."

Breyer said that those purposes were to prevent religious discrimination and strife by removing the realm of religion from government interference. While government endorsement of particular religious texts is impermissible in most circumstances, he said, were the court to conclude that the 40-plus-year-old Texas display had to be removed, it could cause even greater strife and "thereby create the very kind of religiously based divisiveness that the establishment clause seeks to avoid."

But Justice John Paul Stevens, in a passionate dissenting opinion, said Breyer's argument is unconvincing, and that the Texas display is plainly unconstitutional.

"For those of us who learned to recite the King James [Bible] version of the text long before we understood the meaning of some of its words, God's Commandments may seem like wise counsel," he wrote. "The question before this court, however, is whether it is counsel that the state of Texas may proclaim without violating the establishment clause of the Constitution."

In the second case, McCreary County, Ky., vs. ACLU (No. 03-1693), another 5-4 decision said the two courthouse displays were unconstitutional. Justice David Souter -- joined by justices Stephen Breyer, Ruth Bader Ginsburg, Sandra Day O'Connor and John Paul Stevens -- said the history of the displays revealed they violated the First Amendment.

Officials in Kentucky's McCreary and Pulaski counties initially placed only framed copies of the Protestant King James version of the commandments in their courthouses. Local residents sued the counties, with the help of the American Civil Liberties Union of Kentucky, for violating the establishment clause. The displays were then modified to incorporate legal and historical documents other than the commandments.

In response, the county commissions passed resolutions instructing officials to "post the Ten Commandments as the precedent legal code upon which the civil and criminal codes of the Commonwealth of Kentucky are founded." They then modified the display, adding several other documents -- beside and smaller than the framed Decalogue -- that purported "to demonstrate America's Christian heritage." They included an excerpt from the Declaration of Independence, a proclamation by late President Ronald Reagan declaring 1983 the "Year of the Bible," and the Mayflower Compact.

A federal court also found the modified displays unconstitutional, and the counties -- after getting new attorneys -- again altered their displays to include several other documents of patriotic or historic legal nature, including lyrics to the "Star-Spangled Banner" and a picture. The third version of the displays also included an explanatory text that said, "The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition."

In late 2003, the 6th U.S. Circuit Court of Appeals ruled that the displays were not erected with a sufficiently secular purpose and that they appeared to endorse religion, even after they were modified.

The Supreme Court said the original purpose of the displays -- before they were modified -- made them unconstitutional.

"[W]e do not decide that the counties' past actions forever taint any effort on their part to deal with the subject matter [of the Ten Commandments]," Souter wrote. "We hold only that purpose needs to be taken seriously under the establishment clause and needs to be understood in light of context; an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense."

Justice Scalia, in a move that usually indicates particularly strong disagreement with the majority, voiced his dissenting opinion in open court June 28.

"This ruling ratchets up this court's hostility to religion," he said. Arguing in his dissent that the original meaning of the First Amendment does not bar government displays of religious texts, Scalia said the framers of the First Amendment would have allowed for "government acknowledgement of the Creator."

Speaking to reporters on the court's front steps after the opinions were announced, representatives of groups involved in the cases tried to pick out the good news for their causes amid the seeming contradictions between the decisions.

"Today's decision does not erase all Ten Commandments displays" across the country, noted Matt Staver, who heads a religious conservative group called Liberty Counsel and who argued McCreary County's case before the court. He noted that, unlike many Supreme Court opinions, the decision was not the final one in the case because it had been brought on a procedural ruling. "We fully intend to go back down to the trial court in Kentucky" and retry the case, he said.

Tony Perkins, head of the Washington-based Family Research Council, praised the court's opinion in the Texas case. "There is no other decision that would make sense, given our constitutional history," he said. "Of course, we do not agree with the court's decision on the Kentucky case, but we welcome the court's decision to uphold the right to display the Ten Commandments on public property in Texas." Perkins' group filed friend-of-the-court briefs in favor of both displays.

The Baptist Joint Committee for Religious Liberty filed briefs opposing both displays. Holly Hollman, the group's general counsel, said "both of the decisions uphold the neutrality principles, which is good for religious liberty."

Nonetheless, both those groups and several others had urged the court to use the cases to create a bright-line rule on displays of the Ten Commandments. Barry Lynn, head of Americans United for Separation of Church and State, said the "split decisions just guarantee there will be far more lawsuits" involving governmental displays of the Decalogue.

The last time the court dealt with governmental displays of the Decalogue was in 1980, ruling in Stone vs. Graham that a law requiring Kentucky public schools to post the Commandments was unconstitutional. Although many religious conservatives have decried that decision in the years since, both Rehnquist's and Souter's opinions in the most recent cases affirmed it.