Instead of resolving nearly three decades of legal divisiveness over Ten Commandments monuments on public property, the Supreme Court, in issuing two contradictory rulings on June 27, set the scene for more confusion and bitter legal battles. Although a majority voted against a display of Ten Commandments inside two Kentucky courthouses, a plurality of the Court approved a Ten Commandments display at the seat of state government.
In the 5-4 Kentucky decision, Justice David Souter cataloged the clear religious intent contained in county resolutions to demonstrate "America's Christian heritage." After being sued, officials added "historical displays" around the Ten Commandments, but the lower courts, the Sixth Circuit Court of Appeals and the Supreme Court ruled that the alleged secular purpose was a "sham."
Joined by John Paul Stevens, Sandra Day O'Connor, Ruth Bader Ginsburg and Stephen G. Breyer, Souter wrote:
"The touchstone of our analysis is the principle that the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." O'Connor added a graceful concurrence. Scalia issued a shocking 30-page dissent, belittling the rights of "nonmonotheists" and atheists, which he read from the bench, sometimes angrily, according to press accounts.
The Court reached the opposite conclusion in the Texas Commandments case, approving the posting of a 6-foot-tall Ten Commandments monument on Capitol grounds.
The Establishment Clause permits the disregard of devout atheists. --Scalia
Justice Stephen G. Breyer was the unwelcome "swing vote," who defected to the right-wing contingent of Chief Justice William Rehnquist, and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy. Breyer issued his own (lame) concurrence but did not sign Rehnquist's decision.
In 1961, the Fraternal Order of Eagles gave one of its many tombstone-like Ten Commandment monoliths to "the people and youth of Texas." There are 17 monuments, including the Ten Commandments, and 21 historical markers on the 22-acre Texas State Capitol grounds, allegedly commemorating the "people, ideals, and events that compose Texan identity." After former attorney Thomas Van Orden filed suit several years ago, a lower court ruled that the state had a valid secular purpose--to commend the Eagles for their "efforts to reduce juvenile delinquency."
Rehnquist said the bible marker is a "passive monument."
The chief justice wrote: "Of course the Ten Commandments are religious . . . Simply having a religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause." A passionate dissent was issued by Stevens, joined by Ginsburg.
Souter (Kentucky majority):
"We are three centuries away from the St. Bartholomew's Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual."
Justice O'Connor (Kentucky concurrence):
"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: Our regard for constitutional boundaries has protected us from similar travails. . . . Why would we trade a system that has served us so well for one that has served others so poorly?"
"It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First amendment."
"Nor can we accept the theory that Americans who do not accept the Commandments' validity are outside the First Amendment's protections. . .
Scalia (Kentucky dissent):
"And of course the First Amendment itself accords religion (and no other manner of belief) special constitutional protection."
"[It is a] demonstrably false principle that the government cannot favor religion over irreligion."
"With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists."
"[The majority opinion] rachets up the Court's hostility to religion."
Rehnquist (Texas decision):
"Our institutions presuppose a Supreme Being."
Breyer (Texas concurrence):
"The case before us is a borderline case. . . . In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct)."
Stevens (Texas dissent):
"The sole function of the monument on the grounds of Texas's State Capitol is to display the full text of one version of the Ten Commandments. The monument is not a work of art and does not refer to any event in the history of the State. It is significant because, and only because, it communicates the following message:
"I AM the LORD thy God.
"Thou shalt have no other gods before me. . . .
"The message transmitted by Texas's chosen display is quite plain: This State endorses the divine code of the 'Judeo-Christian' God."
"[The goal of reducing juvenile delinquency is laudable but] achieving that goal through biblical teachings injects a religious purpose into an otherwise secular endeavor. . ."
"The Eagles may donate as many monuments as they choose to be displayed in front of Protestant churches, benevolent organizations' meeting places, or on the front lawns of private citizens. The expurgated text of the King James version of the Ten Commandments that they have crafted is unlikely to be accepted by Catholic parishes, Jewish synagogues, or even some Protestant denominations, but the message they seek to convey is surely more compatible with church property than with property that is located on the government side of the metaphorical wall.
"The judgment of the Court in this case stands for the proposition that the Constitution permits governmental displays of sacred religious texts. This makes a mockery of the constitutional ideal that government must remain neutral between religion and irreligion. If a State may endorse a particular deity's command to 'have no other gods before me,' it is difficult to conceive of any textual display that would run afoul of the Establishment Clause.
"The disconnect between this Court's approval of Texas's monument and the constitutional prohibition against preferring religion to irreligion cannot be reduced to the exercise of plotting two adjacent locations on a slippery slope. Rather, it is the difference between the shelter of a fortress and exposure to 'the winds that would blow' if the wall were to crumble. That wall, however imperfect, remains worth preserving."