Tuesday , June 28, 2005
A divided Supreme Court on Monday struck down Ten Commandments displays in two Kentucky courthouses, but ruled a 6-foot granite replica on state government land in Texas is acceptable.
In the first ruling, McCreary County v. ACLU (search), the court said the Kentucky displays violated the Establishment clause of the First Amendment, which prohibits government from endorsing or supporting one religion above others.
The justices ruled 5-4 that the Ten Commandments (search) could not be displayed in court buildings or on government property. However, the Biblical laws could be displayed in an historical context, as they are in a frieze in the Supreme Court building. Notably, the first four commandments, which have to do with honoring God and the Sabbath, were obscured by the artist who designed the frieze.
"The touchstone for our analysis is the principle that the 'First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion,'" Justice David H. Souter wrote in the majority opinion, citing previous court rulings.
Souter was joined by fellow liberal-leaning Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer, as well as moderate Republican and frequent swing voter Sandra Day O'Connor.
Monday's rulings were perhaps the court's most highly anticipated of the 2004 session. The court has not visited the hotly contested issue since 1980 when religious displays in public schools were ruled unconstitutional.
The nation's interest in the cases was boosted by former Alabama Justice Roy Moore (search)'s battle two years ago to keep a giant, 5,300-pound granite replica of the commandments in his courthouse. On Nov. 13, 2003, a judicial panel banished him from the bench because he defied a federal court order to remove the tablets.
Souter signaled an awareness of the intense passions surrounding the issue of religion in public life, which in several instances have been elevated to death threats.
"Manifesting a purpose to favor one faith over another, or adherence to religion, generally, clashes with the 'understanding, reached ... after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens,'" Souter wrote.
In her concurring opinion, O'Connor acknowledged that "we are a religious people," but said that the separation between church and state was the very thing that freed Americans to practice their faiths.
"At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish," she wrote.
Leading the dissent, Justice Antonin Scalia railed against what he perceived as the majority opinion's inconsistency.
Listing the various ways in which higher beings are invoked in public life — from "so help me God" in inaugural oaths to the prayer that opens the Supreme Court's sessions — Scalia asked, "With all of this reality (and much more) staring it in the face, how can the court possibly assert that 'the First Amendment mandates governmental neutrality' [on religion]?"
Scalia, who was joined in his dissent by Chief Justice William H. Rehnquist and Justices Anthony Kennedy and Clarence Thomas, said the court's majority opinion ought to be voided "because the court has not had the courage (or the foolhardiness) to apply the neutrality principle consistently."
The Kentucky displays have been the target of litigation since they were first posted in 1999. With each lower court ruling against county officials, revisions were made to the displays. By the time the case landed on the Supreme Court's docket, the framed copies of the commandments were part of a larger, more neutral display about the history of American law.
Scalia wrote in his dissent that the changed displays had become constitutionally acceptable. However, during oral arguments in March, Scalia scolded the county for trying to convince the court the displays had been stripped of religious intent, saying it was "idiotic" to dress the commandments in historical documents such as the Declaration of Independence.
Scalia, Rehnquist and Thomas have all said that there is nothing wrong with government asserting God's supremacy, while the other justices on the court believe doing so would be to the exclusion of Americans of other faiths or no faith, and is therefore unconstitutional.
Several justices were particularly disturbed by a resolution passed by McCreary County officials in reaction to a lower-court ruling, declaring that American law was derived from the Ten Commandments. While revisions were made to the displays, that resolution was left intact.
In the resolution, county officials declared: "The judicial laws of God, as they were delivered by Moses, [should] be a rule to all the courts in this jurisdiction."
Court Goes Other Way in Texas Case
The other Ten Commandments case, Van Orden v. Perry (pdf), involved a statue donated to the government and placed on grounds outside the state capitol. A Texas court had ruled that the replica, given by the Fraternal Order of Eagles in 1961 and placed among more than a dozen non-religious monuments, did not violate the Establishment clause.
The case was brought by Thomas Van Orden, a former lawyer who is now homeless. Last week, in an interview with the Dallas Morning News, Van Orden predicted the court would rule against him, but said winning or losing was almost beside the point.
"This was never a lawsuit at all," he told the News. "It was always a political question."
This time Justice Breyer sided for the display, giving opinion writer Rehnquist a 5-4 majority.
Having religious significance does not mean the display automatically violates the Establishment clause, he wrote.
"According to Judeo-Christian belief, the Ten Commandments were given to Moses by God on Mt. Sinai. But Moses was a lawgiver as well as a religious leader. And the Ten Commandments have an undeniable historical meaning," Rehnquist said.
Rehnquist also said that the statue's placement on the grounds among secular monuments was "passive," rather than confrontational. Rehnquist was joined in his opinion by Justices Scalia, Kennedy and Thomas. Justice Breyer wrote his opinion separately.
Justice Stevens, writing the dissent on behalf of O'Connor, Souter and Ginsburg, said there was nothing passive about the display.
Having noted that the first commandment — "I am the Lord thy God" — is more boldly displayed than the other nine, he wrote, "The message transmitted by Texas' chosen display is quite plain: This state endorses the divine code of the 'Judeo-Christian' God."
Stevens also implied the claim that the monument was on state grounds to honor history was disingenuous, because of the government's resistance to removing the display.
Church-State Battle Not Nearly Over
While pleased with the Texas ruling, religious groups saw the Kentucky decision as a setback.
"This is not so much about neutrality toward religion, but a growing hostility by this court toward religion," Tony Perkins, president of the Family Research Council, told FOX News.
"This idea that we somehow have that the Establishment clause prohibits a recognition of the Christian heritage of our nation is absurd," Perkins said.
But groups that advocate for a strict church-state separation welcomed the Kentucky ruling.
"Although we disagree on the facts of the Texas case and think the Supreme Court should have ruled that one unconstitutional as well, we're very pleased that what the clear majority of the court has done is reaffirm the principles behind church-state separation and religious liberty," said Elliot Mincburg, vice president of People for the American Way.
Mincburg added that while the mixed rulings left some room for confusion, the religious displays issue would never be black and white.
"What most of the court is saying is this is not an area where there should be bright-line rules. After all, there's a Ten Commandments frieze in the Supreme Court building. This is an area where context is everything," Mincburg told FOXNews.com.
"You have to look more deeply at the fundamental purposes of the Constitution and the way in which all the justices eloquently said avoiding government promotion of religion is a critical way to ensure people are truly free to practice religion in any way they want to," he added.
Douglas Laycock, who has argued religious liberty cases before the Supreme Court, said the mixed ruling means no end in sight to church-state litigation.
"We will be litigating these cases one at a time for decades," Laycock told FOXNews.com. The two rulings merely "provided each side with some new arguments," he said.
Laycock, who teaches at the University of Texas at Austin School of Law, said that while the cases were close, the evangelicals behind the Ten Commandments movement came out slightly ahead.
"There's a sort of road map for how to get away with putting these things up," he said. "On new displays, the lesson to politicians is to keep your mouth shut, don’t talk about what you're really doing, pretend you're putting this up for secular reasons, put some secular stuff around it and swear to the judge it's all for secular purposes."
And referring to Justice Breyer's observation that the monument had been up for 40 years before Van Orden complained, Laycock said: "The lesson for the opponents is if anything new goes up, find your plaintiff and sue right away before it becomes historically grandfathered."
While battles over religion seem as old as religion itself, Laycock said that America is now in a period where the fighting is particularly impassioned.
James W. Watts, an associate professor of religion at New York's Syracuse University, agreed, pointing out that for the most part, the Supreme Court has tried to put the brakes on such clashes.
"The Ten Commandments movement is clearly an attempt to get the United States government to declare itself a Christian nation," he told FOXNews.com. "I don't know what the effect of these rulings is, though it still seems to resist that movement."
Watts, who has argued that the Ten Commandments are "iconic texts" and that "we cannot avoid the symbolic import of texts," said he didn't see much philosophical clarity in the Supreme Court's rulings.
"I don't think that distinction between history and religion makes much sense. However, it's the business of law to draw strict lines of demarcation where in reality they don't exist," he said.
And even if the Ten Commandments movement scored a win in Monday's rulings, Watts did not necessarily see victory in its future.
"Separation of church and state has been a tremendously powerful idea. That was its original purpose ... to keep religion out of the government, to keep the Episcopalians from persecuting the Baptists."
And for the most part, Watts said, the church-state separation has been beneficial to Americans.
"The number of people who have been hurt or died because of religious persecution has been relatively small [in America]. It has kept religious groups from having control in government to use it for their own purposes — that's worked very well."
Still, there is probably little the Supreme Court can do to put an end to America's religious conflicts once and for all.
"The front line has gradually shifted as we've become more diverse, but it's a very old battle," Laycock said. "These [cases] are so fact-specific and individualized, future justices can make what they want of them. We've got some new ground rules for litigating these cases, but nothing clear enough to keep people from litigating them."