Deciding not to revisit a controversial decision from 2005, the Supreme Court announced Tuesday it will not give another look at the attempt by local officials in Kentucky to hang a copy of the Ten Commandments inside their county courthouse.
The decision to bypass the case is a defeat for those who feel the document is of such great moral importance that a framed copy must be placed in the McCreary County Courthouse. Equally, it is a victory for those opposed to the placement of an inherently religious document in the public space, especially the ACLU.
Now retired Justice David Souter's 5-4 ruling carried the day six years ago when he said the local lawmakers' attempts to display the revered document were unconstitutional because they "presented an indisputable, and undisputed, showing of an impermissible purpose."
That purpose Souter objected to was an effort by the local officials to advance Christianity inside the courthouse, thus violating the Constitution's First Amendment protection against government endorsed religion.
The majority didn't categorically exclude religious themed material from public spaces. In fact, it specifically left open the possibility that McCreary County officials could--under different circumstances--hang the Ten Commandments inside their courthouse. As Souter explained, "the Court does not decide that [their] past actions forever taint any effort on their part to deal with the subject matter."
The court was asked decide whether the "taint" of the past efforts to hang the document has been removed and if the attempt to place it alongside other notable secular material, called "Foundations of American Law and Government Displays" is permissible.
County officials argued that the passage of time and their declaration that the entire display which would also includes copies of the Magna Carta, Declaration of Independence and Bill of Rights is for "a clear secular and educational purpose" ought to be sufficient for them to also show the Ten Commandments in an equally-sized frame.
A split panel of the Sixth Circuit U.S. Court of Appeals disagreed. The majority said the passage of time was meaningless, that a change in government personnel in McCreary County was irrelevant and that there is "little evidence that [the County's] actual purpose has changed."
Judge James Ryan dissented saying a taint never existed and defended Justice Antonin Scalia's dissent from 2005 which he said was a "powerful and logically compelling explanation...that the displays in question do not violate the First Amendment and never did."
Scalia's dissent offered an overview of the role religion played in the nation's founding and expressed bewilderment at how the Constitution could be used to exclude the Ten Commandments from the courthouse.
"If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all," Scalia wrote. "One cannot say the word 'God,' or 'the Almighty,' one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs."
The ACLU of Kentucky led the challenge against the display. In asking the high court to stay out of the case, lawyer William Sharp argued the lower court's decision was a reasoned conclusion based on evidence showing that the county officials "acted with a predominantly religious purpose in erecting their Decalogue displays, and that [they] failed to present any new evidence since this Court's decision in 2005 to justify reaching a different result."
The justices offered no reason why they decided not to reconsider the case.