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
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
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
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
"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
"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
"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
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
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
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
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
oral-argument transcript in Kentucky case, McCreary v. ACLU
oral-argument transcript in Texas case, Van Orden v. Perry