The Supreme Court and the Ten Commandments

At the end of its current term, the justices of the U.S. Supreme Court issued two judgments and 10 opinions concerning the constitutionality of governmental displays of the Ten Commandments. One judgment upheld the permissibility of the 44-year-old display in the Texas Capitol Park of a six-foot granite monolith with the full text of the Ten Commandments. The other judgment held that two Kentucky counties violated the Establishment Clause of the First Amendment by their recent displays, in county court hallways frequently used by the public, of a much smaller framed version of the Ten Commandments.

Both judgments were by a vote of 5 to 4. The lower federal and state courts must follow these judgments in reaching their decisions in the many similar display cases that are still pending in those courts. But only one of the 10 opinions in the two cases binds the lower courts because only one bears the signatures of a majority of the justices of the Supreme Court. That opinion is in the case McCreary County v. American Civil Liberties Union of Kentucky, authored by Justice David H. Souter.

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Justice Souter, speaking for the court, held that the county authorities violated the neutrality mandate of the Establishment Clause because their predominant purpose for the displays was to advance religion. His opinion, however, also stated that permissible secular reasons exist for governmental displays of the Ten Commandments.

There is no opinion of the court in the Texas granite monolith case (Van Orden v. Perry). Chief Justice William H. Rehnquist’s opinion is signed by only three other justices: Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas. But the court’s judgment in favor of the Texas display is also signed by Justice Breyer, the only justice who signed both judgments of the court.

For Justice Breyer, a key reason for upholding the Texas display but striking down the Kentucky counties’ display is that the 44-year-old Texas display has not generated any substantial religious divisiveness, while the Kentucky counties’ display has had a short (and stormy) history. This experience, he adds, helps us understand that as a practical matter of degree this [Texas] display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.

The short and stormy history of the Kentucky counties’ display includes three different stages. In the summer of 1999, county officials in McCreary County and Pulaski County hung large, gold-framed copies of an abridged text of the Ten Commandments in busy hallways of their county courthouses. County residents used these courthouses not just for litigation, but also for driver licenses and permits, car registrations, taxes and voting.

The American Civil Liberties Union of Kentucky and various private individuals sued for an injunction against these displays. Before the court took any action, the counties authorized a second, expanded display that included the original large framed copy of the Ten Commandments and smaller framed copies of various legal documents with religious themes or excerpts that highlighted the importance of religion in American and Kentucky history.

On May 5, 2000, the federal district court entered a preliminary injunction against the displays. The counties responded by changing their lawyers and their displays. The third version included nine documents of equal size, one of them setting out the King James Version of the Ten Commandments (Ex 20:3-17). Many of the documents contained strong religious themes. The set of documents was exhibited as The Foundations of American Law and Government Display. The trial court then enjoined this third version of the counties’ display. The Court of Appeals for the Sixth Circuit affirmed, and the Supreme Court affirmed the Sixth Circuit.

Justice Sandra Day O’Connor’s announcement of her retirement from the court will not change the difficult task the lower courts face in assessing the impact of these Supreme Court decisions on the many Ten Command-ments cases still pending in the lower courts. Her retirement, however, is sure to intensify the debate over who her replacement should be.

Whatever the Supreme Court does in the future, the court should continue to maintain the delicate balance that it has been seeking to achieve between governmental neutrality in religious matters and governmental recognition and accommodation of the vital role that religion plays in the lives of most Americans.

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