Commandments displays allowed, except when not

WASHINGTON – In split rulings, the Supreme Court reached a Solomonic compromise Monday on government displays of the Ten Commandments that advocates on both sides of the issue decried as adding “mud to murky water.”
The justices struck down displays in two Kentucky courthouses, saying their intent and purpose were explicitly religious and, therefore, at odds with constitutional protections against government-sponsored proselytizing.
But the court upheld a 44-year-old display on the Texas Capitol grounds, saying its history and context were sufficiently nonreligious to avoid conflict, no matter what its original purpose or intent.
The rulings, both 5-4 and accompanied by biting dissents, conform to the court’s long history of confusing – and seemingly contradictory – rulings on church-and-state matters.
The justices have struck down prayer in public school classrooms, at sporting events and at graduation ceremonies but have permitted public Nativity scenes, prayers at the beginnings of legislative sessions and the phrase “In God We Trust” on U.S. currency.
Monday’s rulings leave both religious and secular advocates with a similarly unsatisfying answer to the question of where and how governments can display Ten Commandments monuments: It depends.
“They’re saying they’ll make arbitrary ad hoc determinations about these things,” said Jared Leland, legal counsel for the Becket Fund for Religious Liberty, an advocacy group. “They’re not relying on broad principle. It’s just an additional clouding of the water.”
Barry Lynn, executive director of Americans United for Separation of Church and State, agreed that the court had failed, even though his group pushed for a different outcome from the one Leland’s group sought.
“It’s very frustrating, and it almost certainly will lead to more lawsuits,” Lynn said. “They had a chance to say definitively that governments can’t own and operate religious symbols. That would have been a clean, simple line. I have no idea why they can’t bring themselves to do that.”
The rulings were announced on the last day of the high court’s term amid rampant speculation that one of the nine justices might retire. Chief Justice William H. Rehnquist, who is ill with thyroid cancer, has been the most intense focus of that speculation. But no announcement was made Monday about Rehnquist’s plans.
Monday’s Ten Commandments rulings placed the justices in the center of a contentious social debate.
The Supreme Court hadn’t dealt with a case involving the Ten Commandments in a quarter-century. But as secular interests have challenged such displays in courthouses and other public spaces around the country, religious conservatives have tried to assert the country’s Christian heritage.
Writing for the court in the Kentucky case, Justice David Souter said it was similar insistence on the part of officials in two counties that constitutionally doomed their Ten Commandments displays.
The officials initially posted the Ten Commandments alone in the courthouses, saying they were “the precedent legal code” for the state.
After the displays were challenged in court, the officials changed them to include other historical documents and largely dropped their assertions about the religious roots of American law.
When the displays were challenged a second time, the officials changed them again by adding still more documents and said their purpose was to “educate” citizens about documents that play a significant role in law and government.
Souter said he found the officials’ initial intent overwhelming and impossible for the court to ignore.
“No reasonable observer could swallow the claim that the counties had cast off the object so unmistakable in the earlier displays,” Souter wrote. “The reasonable observer could only think that the counties meant to emphasize and celebrate the Commandments’ religious message.”
Justices John Paul Stevens, Sandra Day O’Connor, Ruth Bader Ginsburg and Stephen Breyer joined Souter in the majority.
Rehnquist and Justices Anthony Kennedy and Clarence Thomas joined Antonin Scalia in dissent.