Taking down the Ten Commandments

Government workers shouldn’t sandblast religious friezes off building facades just yet. But yesterday’s Supreme Court decision on the Ten Commandments is another small step toward the banishing of religion from the public square, more evidence that President Bush must appoint to the bench genuine constitutional scholars who will refrain from the willfull amnesia the court’s liberal justices are determined to impose on America.

Religious imagery abounds in American life, and always has. But in a split decision written by Justice David H. Souter and joined by Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and Sandra Day O’Connor, the court ruled that McCreary County, Ky., cannot display in the courthouse the Ten Commandments beside the Magna Carta and the Mayflower Compact of 1620 as a historical document that “played a significant role in the foundation of our system of law and government.”

In a stinging dissent joined in whole by Chief Justice William Rehnquist and Justice Clarence Thomas and in part by Anthony Kennedy, Justice Antonin Scalia argued that the majority’s notion that government must always be neutral is plainly false. Justice Scalia cited evidence from the court’s own chambers: To this day, the Supreme Court opens every session with a prayer, “God save the United States and this Honorable Court.” (Justice Kennedy did not join in this observation.)

Justice Scalia confronted directly Justice Souter’s contention that “the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion.” “Who says so?” he asked. “Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding [of the First Amendment’s Establishment Clause].”

The government affords churches, religious schools and other such organizations tax exemptions and special benefits, he reasoned, and it has always been that way. “Suffice it to say here that when the government relieves churches from the obligation to pay property taxes, when it allows students to absent themselves from public school to take religious classes, and when it exempts religious organizations from generally applicable prohibitions of religious discrimination, it surely means to bestow a benefit on religious practice,” Justice Scalia wrote.

If one consolation emerges from this ruling, it’s the fact that the majority declined to rule more broadly about the display of religious symbols in public spaces, limiting itself only to the display of the Ten Commandments inside courthouses. But insofar as this ruling stands as an attempt to scrub religion from public life, it serves as a reminder that Mr. Bush has hard work ahead of him in the search for the right judges for the nation’s courts.