In the wee hours of June 27, police patrolling the Supreme Court spotted a curious sight: A crowd of people had gathered outside, lining up in front of a public entrance in the hope of getting a seat inside the next day. Some were clutching sleeping bags.
It was the final day for the high court’s 2004-05 sessions, and some blockbuster opinions were expected, among them two dealing with government’s ability to display the Ten Commandments. Some folks, it seemed, wanted a guaranteed seat inside the court chambers when the decisions came down.
By 11 a.m., both cases had been issued. And at first glance, they seemed very contradictory. The high court, ruling 5-4, struck down a Commandments display inside a courthouse in McCreary County, Ky. But ruling in a separate case, also by a 5-4 vote, the justices upheld a Commandments monument on the grounds of the Texas State Capitol in Austin.
Early media reports distilled the decisions by asserting that the high court had banned Commandments displays inside courthouses but allowed them outside.
In reality, there was a good bit more to the decisions than that. In the first case, McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, the court majority struck down a courthouse Commandments display, asserting that its purpose was to endorse religion. But the justices upheld a Commandments monument on the grounds of the Texas State Capitol, saying its focus was educational and historical.
But more importantly, the court declined to use either case to open up a full-scale assault on the separation of church and state. Religious Right groups had filed legal briefs with the high court urging the justices to formulate new rules for how church and state are to interact. The court rebuffed them.
That fact alone, said Americans United Executive Director Barry W. Lynn, means the pair of rulings are on the whole a positive development for advocates of separation of church and state.
“This is a mixed verdict, but on balance it’s a win for separation of religion and government,” said Lynn. “The court rejected calls by Religious Right legal groups to give government an unfettered right to display religious symbols. The justices wisely refused to jettison long-standing church-state safeguards.”
Added Lynn, “Public buildings belong to everyone. America is a diverse country, and our government should not send the message that some faiths are preferred over others. Public buildings should display the Bill of Rights, not the Ten Command\xadments.”
Justice David H. Souter, who authored the lead opinion in the McCreary case, traced the long history of the displays in that county, leaving no doubt that the intent of local officials was to endorse the Christian religion.
As Souter noted, officials in McCreary and Pulaski counties voted in the summer of 1999 to erect large copies of the Protestant version of the Commandments in their courthouses. In McCreary, county officials had ordered that the Com\xadmandments be posted in “a very high traffic area.”
Acting on behalf of local plaintiffs, the Kentucky ACLU promptly brought legal action. Not long after the suit was filed, officials in McCreary County responded by trying a different tack. They ordered that a new display be created, this one honoring the “Christian” roots of America.
U.S. District Judge Jennifer Coffman was not amused by county officials’ spunk. In May of 2000, she issued an order requiring the county to immediately remove the display. Not long after that, officials erected a third display, a mishmash of historic documents that they said was meant to honor the nation’s heritage. Among other things, it included the Ten Com\xadmandments, the Magna Carta, the Declaration of Independence and the lyrics to “The Star-Spangled Banner.”
Coffman was not convinced that the new display had avoided an emphasis on religion and ordered it removed as well. Tracing the tangled history of county displays, Souter agreed. A reasonable observer who followed the matter, he said, would probably realize that the county was still trying to promote religion.
“If the observer had not thrown up his hands, he would probably suspect that the Counties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality,” Souter wrote.
Souter made it clear that in certain contexts, a Command\xadments display that included other elements would be acceptable. But McCreary County officials, he wrote, had gone far beyond the line.
The Supreme Court building, Souter noted, contains a depiction of Moses holding two Ten Commandments tablets but there’s a crucial difference: Moses isn’t alone.
“We do not forget, and in this litigation have frequently been reminded,” observed Souter, “that our own courtroom frieze was deliberately designed in the exercise of governmental authority so as to include the figure of Moses holding tablets exhibiting a portion of the Hebrew text of the later, secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating neutrality in religion.”
Souter was joined in his opinion by Justices Sandra Day O’Connor, John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.
O’Connor, in a concurring opinion, tacitly criticized court conservatives who want to radically redefine church-state law. The nation, O’Connor asserted, would be ill-served by such a move.
“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,” she wrote. “Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish.”
Added O’Connor, “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”
The dissenting bloc consisted of Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Chief Justice William H. Rehnquist. Leading the four, Scalia took issue with the majority’s claim that government must remain neutral among religions.
Scalia blasted the assertion that public-square religion must be non-denominational.
“If religion in the public fourm had to be entirely nondenominational, there could be no religion in the public forum at all,” he argued. “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.”
From there, Scalia went on to blithely dismiss the religious and philosophical perspectives of millions of Americans, asserting that the record of the country’s historical practices “permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.”
Scalia also asserted that government endorsement of the Commandments is permissible, since the Decalogue is not closely connected with one faith, noting that Christianity, Judaism and Islam recognize the moral code as “divinely given.”
The Scalia faction was able to eke out a victory in the second case, Van Orden v. Perry.
Like McCreary, the Van Orden case was also a 5-4 ruling, but it featured a slightly different and, some might say, surprising alignment of justices: Justice Breyer switched sides, joining the court’s anti-separationist bloc to fashion an opinion upholding the Texas display.
Breyer ended up playing a crucial role in the Texas case because he agreed only with the majority’s result and not its reasoning. Thus he denied the court’s ultra-conservative faction the ability to use the Van Orden case as a vehicle to refashion church-state law.
That’s what Religious Right lawyers had hoped for, and they were denied once again. They were left with cold comfort: another dissenting opinion from Justice Thomas blasting the court for upholding church-state separation in a long line of decisions. Calling previous high court church-state rulings “inconsistent.” Thomas insisted that the court should adopt a “fundamental rethinking” of its church-state jurisprudence.
Lacking the votes for that, the best Rehnquist could muster in his lead opinion was a rather tepid 12-page decision asserting that Texas’ monument was “passive.” He even made it clear that the display in Texas must be distinguished from efforts to post the Commandments in public schools.
Rehnquist cited a 1980 court ruling, Stone v. Graham, which struck down a Kentucky law requiring the posting of the Commandments in public schools. That situation was worse, Rehnquist wrote, because “the text confronted elementary school students every day.”
By contrast, he concluded, the Texas monument had stood for 40 years without generating controversy and those offended by it were not required to see it. He noted that Thomas Van Orden, the Texas attorney who brought the legal challenge, walked by the monument several times before filing his suit.
“Texas has treated her Capitol grounds monuments as representing the several strands in the State’s political and legal history,” Rehnquist wrote. “The inclusion of the Ten Command\xadments monument in this group has a dual significance, partaking both religion and government. We cannot say Texas’ display of this monument violates the [church-state provisions] of the First Amendment.”
In his concurring opinion, Breyer called the Texas display “a borderline case.” But he ultimately determined that Texas officials have used the Commandments “as part of a display that communicates not simply a religious message, but a secular message as well.” Breyer argued that the monument’s physical setting and the circumstances surrounding its display suggest that the state intended for the “nonreligious aspects of the tablets’ message to predominate.”
Justice Stevens took issue with Breyer’s reasoning, arguing that a large granite monument inscribed with a religious message from a specific version of the Bible clearly has a religious meaning.
“The message transmitted by Texas’ chosen display is quite plain: This State endorses the divine code of the ‘Judeo-Christian’ God,” wrote Stevens.
Stevens also took a shot at the crabbed church-state views of Scalia and Thomas. In a one-paragraph concurring opinion, Scalia expressed his belief that “there is nothing unconstitutional in a State’s favoring religion generally, honoring God through public prayer and acknowledgement, or, in a nonproselytizing manner, venerating the Ten Commandments.”
Adoption of the Scalia-Thomas view, Stevens wrote, “would replace Jefferson’s ‘wall of separation’ with a perverse wall of exclusion Christians inside, non-Christians out. It would permit States to construct walls of their own choosing Baptists inside, Mormons out; Jewish Orthodox inside, Jewish Reform out. A Clause so understood might be faithful to the expectations of some of our Founders, but it is plainly not worthy of a society whose enviable hallmark over the course of two centuries has been the continuing expansion of religious pluralism and tolerance.”
In a separate dissent, Souter, joined by Ginsburg, also criticized the majority ruling. The two chided Rehnquist and company for ignoring “the simple realities that the Ten Command\xadments constitute a religious statement, that their message is inherently religious, and that the purpose of singling them out in a display is clearly the same.”
Although the rulings were split, many Religious Right groups decided to go on the warpath. Mat Staver, head of Liberty Counsel, a Religious Right legal group that defended McCreary County before the high court, issued a hyperbolic statement. (The organization is affiliated with TV preacher Jerry Falwell.)
“The Founders would be outraged,” Staver said, “that we are even debating the constitutionality of the Ten Commandments. That the Ten Commandments would be deemed unconstitutional is an insult to the Constitution, to our shared religious history and to our Veterans from whose blood liberty was birthed.”
Tony Perkins, president of the Family Research Council, could barely contain his wrath. Labeling the Kentucky decision “devastating,” Perkins said the ruling is “denigrating to our culture” and “opens the door to hostility toward religion.”
In Colorado Springs, Perkins’ ally James Dobson of Focus on the Family also blasted the high court.
“Today’s split ruling sends a mixed message to the American public,” Dobson said in a statement. “The court has failed to decide whether it will stand up for religious freedom of expression, or if it will allow liberal special interests to banish God from the public square.”
The Rev. Patrick Mahoney of the Christian Defense Coalition vowed to go on the offensive, erecting Texas-style Command\xadments monuments in communities across the country.
“We see this as an historic opening,” he told The Washington Post, “and we’re going to pursue it aggressively.”
Several right-wing members of Congress also went ballistic. Among them was U.S. Rep. Ernest Istook (R-Okla.), who vowed to introduce a constitutional amendment guaranteeing the right of governments to post religious codes. The sweeping amendment would also open the door to officially sanctioned prayer and proselytism in public schools and other governmental venues.
“Outrage isn’t enough; we’ve got to act,” Istook said.
Americans United’s Legal Department is examining the decisions to determine how they might affect the organization’s legal challenges to Commandments displays in other parts of the country.
AU’s Lynn said the organization will remain involved in the issue. The split decision, Lynn said, makes it clear that displays like the one erected by former Alabama Chief Justice Roy Moore are not constitutional. Older displays may be, depending on the circumstances.
“Obviously I would have preferred to win both cases,” Lynn said. “But I’m glad that court rejected the dangerous view of church-state relations put forth by Scalia and Thomas and backed by the Religious Right. The wall of separation may have lost a brick, but its foundation is still solid.”