Commandments Clash

Parsing A Split Decision At The Supreme Court

I know it wasn’t a circus because there were no elephants or acrobats. The scene outside the Supreme Court on June 27, however, was as colorful and chaotic as any I have ever seen there.

I was at the court to respond to the expected decisions on the posting of the Ten Commandments on public property. For the same reason, the Rev. Rob Schenck of the National Clergy Council had set up a podium for prayer and distribution of Commandments pamphlets and, a few feet away, American Atheists President Ellen Johnson had a speaking platform from which to question the validity of the Decalogue.

Others promoted different messages. A contingent of Planned Parenthood activists, a few dressed in judicial robes, was there to dramatize the possible effect on reproductive freedom if one or two justices announced retirements (none did that day). A lone anti-government protestor was roaming through the crowd complaining about an earlier court decision that allows cities to seize private homes for development.

Under Chief Justice William H. Rehnquist, the court always convenes promptly at 10. We “waiters” were standing in the sun on a hot, humid day that would cloud over and threaten torrential downpours every 10 minutes or so. In front of us was a bank of a dozen television cameras and even more microphones. Rev. Schenck was at the mikes, a cell phone at each ear to get updates about the decisions.

I was accompanied by several AU staff members. At about 10:15, Com­muni­cations Director Joe Conn got a call reporting that the decision involving the Com­mandments case from McCreary County, Ky., had been announced inside; a 5-4 majority had ruled the courthouse poster display unconstitutional.

Another 15 minutes or so went by. We learned that Justice Antonin Scalia was inside reading parts of his “withering dissent.” Scalia has never seen a Christian religious display he didn’t think the government should erect, so his outrage was predictable. He may have been auditioning for chief justice in the event of Rehnquist’s retirement.

As dark clouds rolled in, secularists and religious people alike joked about the omen-like significance were the heavens to open. I remarked that I understood that it rains on the just and the unjust, so nobody should read anything into any deluge.

A few more minutes passed, and another call came through: The court had approved the display of a 1960s-era Commandments monument outside the Texas statehouse, calling it historical and uncontroversial and declaring that it did not primarily promote religion. We had a split decision.

Rev. Schenck and a few other Religious Right figures made statements to the news media, followed by the AA’s Johnson. I held back for a bit, trying to skim the decisions brought out to me by one of our staff members who had been inside the court.

It was soon clear that this “split” had broken in our favor. We would have to live with many of the Commandments monuments that had been put up as props all over the country for Cecil B. DeMille’s biblical movie epic. But these rulings would in no way permit the display of the Decalogue in public schools and would not allow the kind of display attempted by former Alabama Chief Justice Roy Moore with his multi-ton monolith in the state judicial building.

In fact, I didn’t see how any newly minted overtly religious display could pass muster with five justices. Justice Stephen Breyer (oddly, the swing vote that day) seems willing to uphold only displays that are at least 40 years old, were erected without religious ceremony and were placed alongside secular markers.

After the speeches at the microphone bank, TV reporters began pulling organizational leaders aside for one-on-one interviews. I did a live shot with Pete Williams for MSNBC (and a taped segment for NBC “Nightly News”) and then interviews with everybody else from CNN and ABC to Pat Robertson’s Christian Broadcasting Network, the BBC and the Tokyo Broadcasting Network. In between those shots, I spoke with radio networks and print reporters on tight deadlines.

I was a little surprised at the little interest being shown by cable news networks that morning. Several tentative debates were cancelled. When I got back to the office, cable news shows were filled with stories of a Florida shark attack and the horrendous confessions of the notorious BTK serial killer. Virtually all the interviews were with shark or serial killer experts. The Ten Command­ments just didn’t have the visual appeal of helicopter shots of shark silhouettes in the ocean or the admittedly chilling video of the killer confessing.

The evening newscasts and the print journalists did a more thorough job of sorting through the cases (and the shifting messages of the Religious Right, which went from near jubilation in the morning to cataclysmic denunciation by mid-afternoon). Some of the better radio talk shows, like Michelangelo Sig­no­rile’s show on the Sirius Satellite Net­work and bestselling author Mitch Albom’s syndicated program, also did a good job of sorting through the meaning of the 137 pages’ worth of decisions. So did Nina Totenberg on NPR’s “All Things Considered.”

It was a busy day but a productive one. Now comes the hard part: Analyzing the decisions and making sure communities abide by them. Our foes in the Religious Right have their own ideas for pushing the envelope, so stay tuned.

Barry W. Lynn is executive director of Americans United for Separation of Church and State.