WASHINGTON – A divided Supreme Court on Tuesday declined to hear an Indiana case testing whether public display of the Ten Commandments violates the principle of separation of church and state.
The court turned aside an appeal by city officials from Elkhart, Ind., who had lost the church-state fight in lower courts. The dispute was over the display of a granite marker that bore the biblical commandments. It had been placed on the lawn in the front of the city building.
The court does not release the vote by which it agrees or refuses to take a case. But at least three — Chief Justice William H. Rehnquist, Antonin Scalia and Clarence Thomas — opposed the decision not to hear the case. It takes the affirmative votes of at least four justices to get a case heard.
Instead, a majority of the court let stand a lower court ruling that the marker violated the constitutional boundaries between church and state. A federal judge will now govern what to do with the monument, which has been in place since 1958.
Two city residents, with backing from the American Civil Liberties Union, had sued to get rid of the marker.
In their dissent, Rehnquist, Scalia and Thomas said they would have taken the case and said they found nothing wrong with the monument's display.
The monument "simply reflects the Ten Commandments' role in the development of our legal system," Rehnquist wrote for the three.
Justice John Paul Stevens then added his own note taking issue with the dissenters.
Stevens said the words "I am the Lord thy God," in the first line of the monument's inscription "is rather hard to square with the proposition that the monument expresses no particular religious preference."
The signed statements accompanying Tuesday's decision not to hear the case did not reveal who joined Stevens in voting to deny the city's appeal.
But the show of dissent on a question of hearing a case was unusual.
City leaders in Elkhart had asked the high court to overturn a federal appeals court's ruling that the monument is an unconstitutional government promotion of religion.
The city claimed a high court ruling, which prohibited such displays on school grounds in 1980, did not preclude the display of the list elsewhere on government property. It claimed that the lawn display met various tests the Supreme Court had set out for public displays of other religious symbols.
The city is represented by the American Center for Law and Justice, a religious-oriented, nonprofit legal group on the model of the ACLU but usually opposed to the secular civil rights group's positions.