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Supreme Court splits on 2 Ten Commandments cases

By The Associated Press
06.27.05

WASHINGTON — A sharply divided Supreme Court today upheld the constitutionality of displaying the Ten Commandments on government land, but drew the line on displays inside courthouses, saying they violated the doctrine of separation of church and state.

Sending dual signals in closely watched cases, the high court said displays of the Ten Commandments — like their own courtroom frieze — are not inherently unconstitutional. But each exhibit demands scrutiny to determine whether it goes too far in amounting to governmental promotion of religion, the Court said in a case involving Kentucky courthouse exhibits.

In the first case, the high court said two exhibits in Kentucky crossed the line between separation of church and state because they promote a religious message.

The 5-4 decision in McCreary County v. ACLU was the first of two seeking to mediate the bitter culture war over religion's place in public life. In that ruling and another, Van Orden v. Perry, involving the positioning of a 6-foot granite monument of the Ten Commandments on the grounds of the Texas Capitol, Justice Sandra Day O'Connor was the swing vote. The second ruling, likewise, was 5-4.

In McCreary, the Court declined to prohibit all displays in court buildings or on government property. Justices left legal wiggle room, saying that some displays would be permissible if they're portrayed neutrally in order to honor the nation's legal history.

But framed copies in two Kentucky courthouses went too far in endorsing religion, the Court held.

"The touchstone for our analysis is the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion," Justice David H. Souter wrote for the majority.

"When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment clause value of official religious neutrality," he said.

Souter was joined in his opinion by other members of the liberal bloc — Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer, as well as Reagan appointee Sandra Day O'Connor, who provided the swing vote.

In a stinging dissent, Justice Antonin Scalia worried about "the dictatorship of a shifting Supreme Court majority" and argued that Ten Commandments displays are a legitimate tribute to the nation's religious and legal history.

Government officials may have had a religious purpose when they originally posted the Ten Commandments display by itself in 1999. But their efforts to dilute the religious message since then by hanging other historical documents in the courthouses made it constitutionally adequate, Scalia said.

He was joined in his opinion by Chief William H. Rehnquist, as well as Justices Anthony Kennedy and Clarence Thomas.

"In the court's view, the impermissible motive was apparent from the initial displays of the Ten Commandments all by themselves. When that occurs: the Court says, a religious object is unmistakable," Scalia wrote. "Surely that cannot be."

"The Commandments have a proper place in our civil history," he wrote.

In the Texas case, the 6-foot-granite monument on the grounds of the Texas Capitol — one of 17 historical displays on the 22-acre lot — was determined to be a legitimate tribute to the nation's legal and religious history.

"Of course, the Ten Commandments are religious — they were so viewed at their inception and so remain. The monument therefore has religious significance," Chief Justice Rehnquist wrote for the majority in the Texas case.

"Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause," he said.

The cases marked the first time since 1980 the high court tackled the emotional issue, in a courtroom boasting a wall carving of Moses holding the sacred tablets.

A broader ruling than the ones rendered today could have determined the allowable role of religion in a wide range of public contexts, from the use of religious music in a school concert to students' recitation of "under God" in the Pledge of Allegiance. It is a question that has sharply divided the lower courts in recent years.

But in their rulings today, justices chose to stick with a cautious case-by-case approach.

Two Kentucky counties originally hung the copies of the Ten Commandments in their courthouses. After the ACLU filed suit, the counties modified their displays to add other documents demonstrating "America's Christian heritage," including the national motto of "In God We Trust" and a version of the Congressional Record declaring 1983 the "Year of the Bible."

When a federal court ruled those displays had the effect of endorsing religion, the counties erected a third Ten Commandments display with surrounding documents such as the Bill of Rights and "Star-Spangled Banner" to highlight their role in "our system of law and government." The Cincinnati-based 6th U.S. Circuit Court of Appeals subsequently struck down the third display as a "sham" for the religious intent behind it.

In Whitley City, Ky., leaders of the two eastern Kentucky counties today grudgingly accepted the Supreme Court's ruling that framed copies of the Ten Commandments wouldn't be allowed to hang in their courthouses.

"We will abide by the ruling of the Supreme Court," said McCreary County Judge Executive Blaine Phillips. "However, we want to encourage our citizens not to give up the fight."

In Texas, the Fraternal Order of Eagles donated the exhibit to the state in 1961, and it was installed about 75 feet from the Capitol in Austin. The group gave thousands of similar monuments to American towns during the 1950s and '60s.

Thomas Van Orden, a former lawyer who is now homeless, challenged the display in 2002. He lost twice in the lower courts in holdings the Supreme Court affirmed today.

Ten Commandments displays are supported by a majority of Americans, according to an AP-Ipsos poll. The poll taken in late February found that 76% support it and 23% oppose it.

The last time the Supreme Court weighed in on the issue was 1980, when it struck down a Kentucky law requiring Ten Commandments displays in public classrooms.

See oral-argument transcript in Kentucky case, McCreary v. ACLU

See oral-argument transcript in Texas case, Van Orden v. Perry


Previous
Justices hear Ten Commandments disputes
Scalia challenges those seeking ban on public displays, noting legislative proclamations invoking God are permissible. 03.02.05

Related

No Court retirements announced

Rehnquist struggles to talk as he adjourns term; retirements could be announced later. 06.27.05

Quick look at Van Orden v. Perry, McCreary County v. ACLU
High court approves outdoor Ten Commandments monument on Texas Capitol grounds; disallows Decalogue exhibits inside Kentucky courthouse. 06.27.05

Justices won't intervene in several Decalogue cases
High court turns away appeals involving four displays in Kentucky, Ohio; meanwhile, ruling stands in South Carolina prayer case. 06.28.05

Georgia courthouse can't display commandments
District judge rules against Barrow County, but notes county officials, employees may still display Ten Commandments on their persons, in their offices. 07.20.05

Group asks Idaho high court to allow commandments initiative
But city of Boise attorney tells justices that letting citizens vote on whether to return monument to city park would make all administrative decisions by local governments subject to voter reversal. 12.12.05

Ten Commandments, other issues generating debate in Ky.
Governor has signed bill allowing granite monument to be returned to state Capitol grounds; dispute arises over use of "B.C., A.D." in public schools. 04.13.06

Ten Commandments can stay on Ohio courthouse lawn
Federal judge says Toledo monument honors tradition, doesn't promote specific religious belief. 04.20.06

6th Circuit refuses to reconsider Ky. Ten Commandments case
Dissenting judge argues Mercer County's display is similar to displays in Pulaski, McCreary counties that were struck down by U.S. Supreme Court. 04.25.06

ACLU challenges Fla. county's Ten Commandments monument
Group claims 6-ton granite monument on courthouse steps violates First, 14th Amendments, is government endorsement of religion. 02.09.07

Federal judge upholds commandments display in Ky. courthouse
ACLU had challenged inclusion of religious codes in historical exhibit at Rowan County Fiscal Court. 09.20.07

Federal court tosses challenge to Ky. school's commandments display
But judge refuses to grant summary judgment in cases targeting courthouse postings in McCreary, Pulaski counties. 10.04.07

Ky. county barred from posting Ten Commandments
Federal judge upholds preliminary injunction issued in 2002, says Grayson County Courthouse display has 'effect of endorsing religion.' 04.05.08

Court unlikely to resolve commandments disputes forever
By Tony Mauro Oral arguments suggest eventual ruling will resolve two cases but not whole controversy. 03.03.05

Context is key to sorting out Commandments rulings
By Tony Mauro Sharply divided Court finds older monuments likely OK; newer, sectarian-driven displays may be challenged. 06.28.05

Ten Commandments: Religious message or civics lesson?
By Charles C. Haynes Though Supreme Court may finally set guidelines for government displays of the religious codes, the controversy won't end. 10.17.04

Ten Commandments, nine justices, zero winners
By Charles C. Haynes Whatever the Supreme Court does in the Ten Commandments cases, neither those who want religion endorsed in the public square nor those who want religion removed from the public square will be satisfied. 03.06.05

High court on Ten Commandments: messy but wise decisions
By Charles C. Haynes Justices' messages on displays involving government property is: It depends. And that may be exactly what we need. 07.10.05

Fighting over religion in 2006: Déjà vu all over again?
By Charles C. Haynes Intelligent design, Ten Commandments, Pledge of Allegiance, Bible courses and, yes, Christmas will continue to be contested. 01.08.06

Ten Commandments, other displays & mottos

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