- The Washington Times - Wednesday, May 30, 2001

The U.S. Supreme Court yesterday fell one vote short of holding a hearing to decide whether cities may display the Ten Commandments — as the court itself does — and told Indiana officials Thou Shalt Not.
In addition to the customary succinct denial order, four justices exchanged pros and cons over why the city of Elkharts nonsectarian display ran afoul of the First Amendment prohibition against "establishment of religion."
The six-foot monument under attack by the American Civil Liberties Union was erected in front of the Elkhart Municipal Building in 1958 by the Fraternal Order of Eagles. The monument also includes an American flag, two Stars of David, Greek letters representing Christ and the eye within a pyramid found on the dollar bill. It was dedicated by Christian and Jewish clergy.
"Making a religious text nonsectarian, however, does not make it secular or strip it of its religious significance," Justice John Paul Stevens wrote in explaining why he objected not only to Elkharts Ten Commandments but to the decision by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas to state why they voted to take the case.
"The city is not bound to display only symbols that are wholly secular, or to convey solely secular messages… . The fact that the monument conveys some religious meaning does not cast doubt on the citys valid secular purposes for its display," Chief Justice Rehnquist wrote for the trio.
Such statements dissenting from a decision not to hear a case "have even less legal significance than the orders of the entire court which … have no precedential significance at all," Justice Stevens said.
The votes of four justices are required for the court to review the merits of a lower court decision. Six refused despite a request by the states of Alabama, Mississippi, Nebraska, North Dakota, Ohio, South Carolina and Texas to provide guidance for jurisdictions that consider such monuments part of "Americas cultural heritage."
Chief Justice Rehnquist said the monument does no more than emphasize the Ten Commandments role as a cornerstone of secular laws and societys rules, just as is done within the Supreme Court chamber.
"Indeed, a carving of Moses holding the Ten Commandments, surrounded by representations of other historical legal figures, adorns the frieze on the south wall of our courtroom, and we have said that the carving 'signals respect not for great proselytizers but for great lawgivers," the chief justice wrote.
There also are dozens of depictions of the Commandments tablets on carved gates in the courtroom, although the Commandments words are not included.
"[This] religious display must come down," said Barry Lynn, executive director of Americans United for Separation of Church and State, who called the decision "another hindrance" for the religious right.
"The Supreme Court missed an important opportunity to clarify an issue that has become the center of a national debate," said Francis J. Manion, a senior counsel at the American Center for Law and Justice, which represents the city of Elkhart and is involved in nine other cases on the issue.
In other action yesterday, the Supreme Court:
* Rejected affirmative-action complaints by three white applicants denied admission to University of Washington Law School in 1990 because of such race-based criteria as "diversity," under a system ended by a voter initiative in 1998. The high court denial does not end the larger issue because of its pending decision on whether to hear the newest chapter in Texas v. Cheryl J. Hopwood.
* Turned away by an 8-0 vote, with Justice David H. Souter abstaining, New Hampshires attempt to have the portion of its Maine border that follows the Piscataqua River declared its shoreline rather than the 1740 "middle of the river" decreed by King George II.
* Effectively ended, as expected, a lawsuit by Rep. A. John Boehner, Ohio Republican, against Rep. Jim McDermott, Washington Democrat, for disclosing to newspapers a secretly recorded telephone conversation among House Republican leaders in 1996.
* Rejected without comment a First Amendment complaint by the U.S. Chamber of Commerce after a Mississippi court barred its television "issue ads" critical of three candidates for judgeships.
* Unanimously decided that the Prison Litigation Reform Act of 1995 requires inmates to exhaust "such administrative remedies as are available" before suing for financial damages or to correct prison conditions.

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