WASHINGTON — There are only 10 commandments, but it took the Supreme Court 138 pages of opinion to decide whether displays of those commandments belong on public property. And in spite of the verbiage, it all boiled down to the views of one justice: Stephen Breyer.
The Supreme Court splintered yesterday on the issue in Van Orden v. Perry and McCreary County v. ACLU, virtually guaranteeing further litigation. The justices said a Ten Commandments monument on the Capitol grounds in Austin, Texas, could stay where it has been since 1961. But the Ten Commandments displays in two county courthouses in Kentucky, put up in 1999 with unabashed pro-Christian intent, had to come down.
How to reconcile the two decisions? At the strictly numerical level, the answer is Breyer. He was the only justice in the majority in both 5-4 cases.
But beyond that, Duke University law professor Erwin Chemerinsky put it best yesterday: “Context is everything.” Chemerinsky argued before the high court against the Texas monument, and lost. Chemerinsky was pleased to have won the vote of O’Connor, who has voted on both sides of the church-state divide, but sorry to have lost Breyer, the deciding vote.
Indeed, context was the driving force in the Court’s decisions, and nothing made that clearer than the color photographs that were included in the Court’s opinions in the Texas case (see page 31 of Van Orden). Breyer’s concurring opinion, upholding the Texas display, includes a panoramic photo of the Capitol grounds that shows the Ten Commandments monument as a sliver of granite that can barely be picked out among an assortment of other memorials and lampposts. But dissenting Justice John Paul Stevens, who said flatly that the message of the memorial is that “this state endorses the divine code of the Judeo-Christian code,” included a very different photo (see page 63 of Van Orden) in which the face of the memorial, etched with the words of the Ten Commandments, almost fills the frame, with none of its surroundings visible.
For Breyer, the wide-range photo demonstrated one part of the crucial context. “The physical setting of the monument,” he wrote, “suggests little or nothing of the sacred.... The setting does not readily lend itself to meditation or any other religious activity. But it does provide a context of history and moral ideals.”
Breyer was also swayed by the fact that the monument had stood unchallenged since it was placed there in 1961. It took a homeless lawyer named Thomas Van Orden, who often passed the monument on his way to the state law library, to take offense and take the state to court. “Those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect,” wrote Breyer.
In dissent, Justice David Souter said the 40-year quiescence had no importance in deciding this establishment-clause case. Past potential challengers might have been deterred by financial and social considerations, he said. “Suing a state over religion puts nothing in a plaintiff’s pocket and can take a great deal out, and even with volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully deterrent.”
But Breyer’s view held sway. And, just as he was willing to let the monument stand, so too Breyer was content to let other sleeping dogs lie: the Court’s own precedents, contradictory as they may be at times. Reviewing those precedents, Breyer said, “The Court has found no single mechanical formula that can accurately draw the constitutional line in every case.”
The so-called Lemon test, which appeared to survive yesterday’s decisions, can explain some of the Court’s judgments but not others, Breyer said, because it is so hard to draw the line. Legislatures may open their sessions with prayers, the Court has said, but public school football players may not.
The Texas monument, like other cases the Court has faced, was “borderline,” Breyer said. “And in such cases, I see no test-related substitute for the exercise of legal judgment... That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes.”
Breyer’s celebration of nuance and seeming contradiction was unacceptable to Justice Antonin Scalia, who wants clear principles to be applied without exception. In his angry dissent in the Kentucky case, some of which he read from the bench, Scalia wrote, “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. That is what prevents judges from ruling now this way, now that — thumbs up or thumbs down — as their personal preferences dictate.”
So why does the Court sometimes embrace government neutrality toward religion and sometimes not? A lack of courage, Scalia said. “I suggest it is the instinct for self-preservation, and the recognition that the Court ... cannot go too far down the road of an enforced neutrality that contradicts both historical fact and current practice without losing all that sustains it: the willingness of the people to accept its interpretation of the Constitution as definitive, in preference to the contrary interpretation of the democratically elected branches.”
But Justice Sandra Day O’Connor had a more principled explanation that seemed to drive her own surprisingly strong stance against the Ten Commandment displays in Texas as well as Kentucky. Maintaining a sometimes wandering boundary between church and state, she seemed to say, is the key to avoiding the religious strife that besets many parts of the world.
“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, while allowing private religious exercise to flourish,” O’Connor wrote. “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”
And in a seeming response to Scalia’s repeated reference to the widespread public acceptance of the Ten Commandments and other acknowledgements of God, O’Connor added, “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.”
So at the end of the day, what is the Court’s verdict on the Ten Commandments? Displays with long and benign histories seem OK; the thousands of Ten Commandments memorials like Austin’s that were placed across the country will not be uprooted. But those displays that are new and sectarian-driven are vulnerable to legal attack.
In short, the justices needed only to look up and to the left of their own chamber to see the paradigm example of what passes muster as of yesterday: the sculpted frieze of Moses holding the tablets, standing for the last 70 years in a row of other lawgivers.
“We do not forget, and in this litigation have frequently been reminded, that our own courtroom frieze was deliberately designed in the exercise of governmental authority so as to include the figure of Moses holding tablets exhibiting a portion of the Hebrew text of the later, secularly phrased Commandments,” wrote Justice David Souter for the majority in the Kentucky case. “In the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating neutrality in religion.”