It only took two cases, 10 opinions and 138 pages. But on June 27, the U.S. Supreme Court finally answered the question about the constitutionality of Ten Commandments displays with the two words neither side wanted to hear: It depends.
Unable to agree on any bright lines, a divided court handed down split decisions upholding some Ten Commandments displays on government property, but not others.
In Van Orden v. Perry, five justices concluded that the overall message of a 40-year-old commandments monument on the grounds of the Texas State Capitol is secular. So it stays.
But in McCreary County v. ACLU, five justices decided that the commandments display on the wall of the local courthouse was a thinly disguised effort by county officials to promote religion. So it goes.
In short, it depends — on context, history, and motive.
Morning-after headlines and editorials featured words like “muddled” and “murky.” And critics from both sides of the debate criticized the Court for messy, unprincipled decisions that solve little and encourage more lawsuits.
But the critics may be wrong. Yes, the justices spoke with many voices (only Justice Stephen Breyer voted with the majority in both cases). But so do the American people. On some issues “messy” is not only the best we can hope for in a pluralistic democracy, but it is also sometimes exactly what we need.
Instead of encouraging more litigation, the Court’s split decisions may have the opposite effect. After all, the day following the rulings, the justices denied review of four cases in which use of the commandments by government officials was declared unconstitutional by lower courts.
Both sides must now think twice before triggering new court battles. Those behind the Ten Commandments movement will need to rethink their backdoor strategy of pushing government officials to promote a religious message in the guise of “historical displays.” And the freedom-from-religion crowd will need to rethink its plans to sue for removal of any and all government monuments or plaques with religious content — regardless of age or intent.
The justices may be all over the map. But taken together, their opinions can be seen as a rebuke to both extremes in the Ten Commandments war. The messy message sent by both decisions is also wise: The government may not endorse religion.
If a divided Court keeps the state out of religion, then a divided Court is good for religious freedom. A case-by-case approach may be preferable to some legal “bright line” for or against religious displays by government. Any attempt to draw such a line could deepen divisions in the nation – not resolve our differences.
Allowing government officials to promote one religious message over others could provoke sectarian conflict and undermine religious freedom. At the same time, removing all monuments with religious messages would, as Justice Breyer put it, “create the very kind of religiously based divisiveness” that the First Amendment is meant to prevent.
How will the public respond? At first blush, it would appear that popular opinion favors the movement to post the commandments in government spaces. In the 2005 “State of the First Amendment” survey recently released by the First Amendment Center, 70% of those sampled supported allowing such displays. Support spikes to 84% when the commandments are displayed as one document among many historical documents.
In the same poll, however, 52% see such government displays as primarily a statement about the roots of our laws — rather than an acknowledgement of God. This suggests that while most people see nothing wrong with government using a religious symbol to make a statement about our history, there may be less support for allowing elected officials to promote a religious message in government buildings.
But however popular or unpopular the Court’s decisions, the First Amendment isn’t up for a vote. As Justice Sandra Day O’Connor explained (in what turned out to be her last opinion): “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.”