T Nation

USSC on 10 Commandments Displays

To wade into that always exciting area of cross-over between politics and religion, the USSC today ruled on two separate state displays of the 10 Commandments – TX and KY. In a bizarre opinion that follows the USSC’s convoluted and ridiculously complicated jurisprudential line on the Establishment Clause of the First Amendment, the court sets up a multi-factor, clear-as-mud test on when such displays are legal under the Establishment Clause.

I’ll follow with some more interpretation after this summary post:

High Court Splits Verdict
On Commandment Displays

Justices Decline to Hear Appeals
From Journalists Over Sources
June 27, 2005 2:01 p.m.

WASHINGTON – The Supreme Court delivered a split verdict on closely watched religious-symbol cases, ruling that a decades-old Ten Commandments monolith could remain on the grounds of the Texas State Capitol, but also declaring that displays installed in courtrooms by religiously motivated Kentucky officials violated the First Amendment’s separation of church and state.

Chief Justice Rehnquist wrote the court opinion in the Texas case, explaining that the context of the monolith, rather than its content, rendered it permissible. It had been erected on the capitol grounds in 1961, as part of a program by a fraternal organization to donate Ten Commandments monoliths to public facilities across the country, and stood today among more than a dozen other monuments commemorating causes ranging from Texas pioneer women to Confederate soldiers.

In the Kentucky case, however, the court observed that county officials had in official resolutions cited their religious aims in installing the displays, asserting that the Founding Fathers had endorsed “the duty of elected officials to acknowledge God as the source of America’s strength and direction.” Although the displays were altered several times in an attempt to lessen their religious message, the opinion by Justice David Souter explained that the counties’ motives in installing the display were significant in evaluating their constitutionality.

In both cases, the court affirmed lower court decisions that, for similar reasons, had upheld the Texas monolith but struck down the Kentucky displays. But the members of the court split widely in their reasoning, filing a series of concurring and dissenting opinions that led Chief Justice Rehnquist to quip before the packed chamber, “I didn’t know we had that many people on our court.”

The most striking opinions came from Justice Antonin Scalia, concurring in the Texas case and dissenting from Kentucky. He urged reversal of precedent that required distance between public authorities and religion because “there is nothing unconstitutional in a state’s favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.”

The cases are Van Orden v. Perry and McCreary County v. ACLU.

It seems like everytime The Court opines, they show their growing detatchment from reality.

It’s almost as bad as having to sit through a Gin-nosed Ted speech.

On the Scalia dissent, which the WSJ article called “striking,” here’s the executive summary of Part I, courtesy of Ed Whelan:

Scalia read from the bench a summary of Part I of his dissent (the part that Kennedy did not join). Be sure to read it: http://wid.ap.org/scotus/pdf/03-1693P.ZD.pdf

Here are the key points:

  1. The history of this country demonstrates that the majority?s proposition that the government cannot favor religion over irreligion is plainly false.

  2. “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.” The majority flunks that test.

  3. “If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all.” “Historical practices . . . demonstrate that there is a distance between the acknkowledgment of a single Creator and the establishment of a religion.”

Some commentary by Eugene Volokh on the divisiveness of USSC Establishment Clause jurisprudence over the past 50 years:


[Eugene Volokh, June 27, 2005 at 1:25pm] 3 Trackbacks / Possibly More Trackbacks

Divisiveness and the Ten Commandments Cases:

The opinions joined in these cases by Justices Stevens, O’Connor, Souter, Ginsburg, and Breyer routinely stress that Ten Commandments displays and the like often threaten to produce “religious divisiveness,” and that the Establishment Clause should be read as making such divisiveness into a reason for invalidating (at least some) government actions. Past Supreme Court cases have made similar claims.

But I wonder: What has caused more religious divisiveness in the last 35 years – (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court’s decisions striking down such actions?

My sense is that it’s the latter, and by a lot: All these decisions have caused a tremendous amount of resentment among many (though of course not all) members of the more intensely religious denominations. And the resentment has been aimed not just at the Justices but at what many people see as secular elites defined by their attitudes on religious matter. The resentment is thus a form of religious division, and I’ve seen more evidence of that than I have of religious division caused simply (i.e., setting aside the litigation-caused division) by the presence of Ten Commandments displays, creches, or even graduation prayers.

Isn’t there something strange about a jurisprudence that in seeking to avoid a problem (religious divisveness) causes more of the same problem, repeatedly, foreseeably, and, as best I can tell, with no end in sight?

Now it may well be that the Court’s actions are justifiable under some other theory. There may well be some other reason why government use of such religious symbols must be struck down despite the religious divisiveness of such government actions. But it seems mighty odd for the Court to strike the actions down in the name of a goal – avoidance of religious divisiveness – that the Court’s actions are themselves undermining.

I should stress that I am not trying to take in this post, or other posts, a definitive view on how the Establishment Clause should be read in cases involving government use of religious symbols or statements. Rather, I’m trying to provide what I hope are helpful comments on particular arguments that I’ve heard – comments that might be of use to people who are drawn to different bottom lines. I’ve found somewhat more to criticize in the no-posting-of-the-Ten-Commandments opinions today than in the OK-to-post opinions. But please take my posts for what they are, which is specific comments on specific arguments, not overall judgments on the matter.

Another good comment by Ed Whelan – this time a critique of the majority’s reasoning in the KY case (in which the display of the 10 Commandments was ruled Unconstitutional):


Preventing Theocracy?
[Edward Whelan 06/27 01:16 PM]

Justice Souter and his four colleagues who joined his majority opinion in the Kentucky Ten Commandments case ( http://wid.ap.org/scotus/pdf/03-1693P.ZO.pdf ) evidently get their understanding of this country from the New York Times op-ed page. Consider this bizarre closing to an argument section that aims to refute Justice Scalia?s dissent:

“[P]ublic discourse at the present time certainly raises no doubt about the value of the interpretative approach invoked for 60 years now. We are 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 . . . .”

If the Court is going to rest its ruling in part on prudential (i.e., policy) reasons like this, it would be helpful if it would tell us what the dickens its references to “public discourse” and “the divisiveness of religion in current public life” are supposed to mean. Is the Court giving anti-religious forces the equivalent of a heckler’s veto? Or does it seriously believe that we are in even the remotest danger of a modern-day St. Bartholomew’s Day massacre?

Some very interesting high-level debate on these two cases can be found at the SCOTUSblog, here:


This is pretty funny, and a pretty darn good summary of the USSC’s screwed-up Establishment Clause jurisprudence vis a vis religious symbols – and from a former national legal director of the ACLU no less. He and I would probably have different opinions of what the correct interpretation of the Establishment Clause is, but again, not a bad summary at all of the USSC doctrinal position:


Monday, June 27, 2005
Ten Commandments
Ten Commandments | Posted by Burt Neuborne at 05:30 PM

Sorry I’m late to the party. At my age, doctors are forever poking and prodding, so I’ve just read the two sets of opinions. My initial reaction is that it isn’t worth the time to read the opinions. Years ago, I proposed the “two plastic animals” rule to govern public displays of religious symbols. The rule posits that any religious symbol may be publicly displayed as long as it is flanked by two or more plastic animals of sufficiently bad taste. The Court has now refined the law of faith-based exterior decorating to allow a religious display if it’s matured sufficiently (I suppose the Pieta is per se OK), and if it is surrounded by a sufficient number of secular monuments of sufficiently bad taste.

Recent displays that respect the dignity of a great religious symbol may be stamped out. This is doctrinal progress? Frankly, I find Justice Breyer’s swing vote very hard to understand. I beleive that he takes contextualism to an indefensible place. It can’t be that the Establishment Clause in this context simply tracks Justice Breyer’s refined sensibilities. I kept thinking as I read the Breyer opinion that what’s really bothering Breyer is Flast. In the absence of a genuine community controversy, why should a single hyper-sensitive person trigger judicial review after 40 years. Breyer transmutes that idea to a loss on the merits, as opposed to an Article III issue.

I also think it important that the Scalia/Rehnquist/Thomas position only has three votes. Kennedy would not join part I of the plurality. Thus, even with Breyer’s insistence on communing with the oracle at Delphi, I see no major shift in doctrine emerging from the cases. Indeed, the stress on purpose that underlies both cases probably makes it harder for the religious right to paper the country with new symbols. Once again, though, I’ll ask why do we care? I’m sympathetic to the notion that being forced to look at the government’s display of someone else’s religious symbol can be disconcerting and can send a message of exclusion.

That’s why I’ve signed all of those briefs. But, tell me that Muslims in this country need a display of the 10 Commandments to let them know they are outsiders. Or, that atheists need government displays of religious symbols to tell them they are on the margin of American public life. To my mind, worrying about the symbols confuses cause and effect. As long as we insist on an equality principle - a Koranic verse at the Texas capitol, I don’t see the value in offending many millions of Americans for whom the displays provide solace and meaning. That’s particularly so when the cases enrage millions of persons who then forget about their economic best interests when they vote.

I would hold my fire for the many settings when religious zealots use government to force people to behave a certain way. Move over Justice Breyer. I’m climbing in. Burt Neuborne