Washington – In approving a granite monument on the grounds of the Texas statehouse but rejecting near-identical displays inside two Kentucky courthouses, the Supreme Court on Monday upheld the wall that separates church and state but splintered on how American government can commemorate the Ten Commandments.
The effect of two contrasting 5-4 decisions was to leave intact a 25-year-old decision that the Ten Commandments are a religious icon that governments may display only in certain neutral circumstances.
The doctrine of separating church and state, which requires that government be neutral toward religion, survived a spirited challenge from the court’s conservative wing, whose members argued that the U.S. is a nation founded and inhabited by religious people whose belief in God may be recognized in public displays.
“Obviously, I am disappointed because I lost 5 to 4 in the Supreme Court,” said Duke law professor Erwin Chemerinsky, lead attorney for the plaintiff in the Texas case, Perry vs. Van Orden. But “overall, today was an important victory for the … wall that separates church and state.”
When the Ten Commandments are portrayed as a historic legal text, the majority concluded, it is permissible for government to honor it in public paintings, sculpture and other displays, as the Supreme Court does at several locations in its own marble courthouse, and as Texans were judged to have done in Austin, where an inscribed monolith is just one of 21 historical markers and 17 monuments scattered about the Capitol grounds.
But when government officials display the commandments in a religious context, the majority ruled, they breach the constitutional separation of church and state. Though the Kentucky counties ultimately surrounded the commandments with other icons from U.S. history, the court concluded in McCreary County vs. the American Civil Liberties Union that the displays were ordered by local officials whose predominant purpose was to make a religious statement.
While the split decisions left activists on both sides dissatisfied, conservatives seemed most upset. In Colorado Springs, Focus on the Family Action chairman James Dobson issued a statement saying that the ruling was further proof “there is a religious witch hunt underway” in America.
“The court has failed to decide whether it will stand up for religious freedom of expression, or if it will allow liberal special interests to banish God from the public square,” Dobson said.
At issue was one of the great constitutional debates in U.S. history: how to interpret a First Amendment that prohibits the “establishment of religion” but at the same time guarantees “the free exercise thereof.”
The slim differences in the facts between the Texas and Kentucky cases were enough to persuade one judge – Justice Stephen Breyer – to switch sides. He voted with Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Sandra Day O’Connor to form a majority in the Kentucky case, but then joined Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy in the Texas ruling.
“If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases,” Breyer wrote in his opinion in the Texas case. “No exact formula can dictate a resolution.”
But while they were glad to have his vote, the court’s conservative justices did not buy Breyer’s reasoning. They argued that there is indeed a constitutional formula and that the original intent of the Founding Fathers allows government to promote religious faith as long as it does not promote a particular religion.
“Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality,” wrote Scalia, in dissent in the Kentucky case.
Scalia also argued that since 97.7 percent of religious Americans are either Christians, Jews or Muslims – all of whom believe the Ten Commandments were given to man by the same God – recognition of the commandments is no different than other common practices, such as politicians closing speeches with “God Bless America” or putting “In God We Trust” on the currency.
“Publicly honoring the Ten Commandments is thus indistinguishable … from publicly honoring God,” Scalia wrote. “Both practices are recognized across such a broad and diverse range of the population – from Christians to Muslims – that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.”
But Stevens, dissenting in the Texas case, contended that the Constitution “requires the same respect for the atheist” as it does for believers and noted that in an increasingly diverse America the court must protect the rights of Hindus, Buddhists and other nonbelievers in the Christian God.
“Today there are many Texans who do not believe in the God whose Commandments are displayed at their seat of government. Many of them worship a different god or no god at all,” Stevens wrote.
Contemporary Americans cannot be bound by a strict interpretation of the beliefs of the Founding Fathers, Stevens argued, because beliefs and prejudices were so different in the 18th century. Women could not vote, African-Americans were held as slaves and “many of the Framers understood the word ‘religion’ … to encompass only the various sects of Christianity,” Stevens wrote. Indeed, “for nearly a century after the Founding, many accepted the idea that America was not just a religious nation, but ‘a Christian nation.”‘
Staff writer John Aloysius Farrell can be reached at jfarrell@denverpost.com.
