- The Washington Times - Tuesday, June 28, 2005

The Supreme Court yesterday, in separate 5-4 decisions, upheld the constitutionality of displaying the Ten Commandments on government property, but said their presence should be scrutinized on a case-by-case basis to guard against governmental promotion of religion.

In the highly anticipated rulings, the high court said a 6-foot monument displaying the Ten Commandments at the Texas state Capitol in Austin was permissible because of its historical context. But the court rejected the framed posting of the Commandments at two Kentucky courthouses, saying the purpose was to “advance religion.”

Chief Justice William H. Rehnquist wrote the majority decision in the Texas case and was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Stephen G. Breyer. Those dissenting were Justices John Paul Stevens, Sandra Day O’Connor, David H. Souter and Ruth Bader Ginsburg.

In the Kentucky case, Justice Breyer joined the majority opinion with Justices Stevens, O’Connor, Ginsburg and Souter, who wrote the decision. Those dissenting were Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas.

Various religious and advocacy groups had vastly different takes on the rulings, but mainly agreed on one thing: The Supreme Court had sent a mixed and confusing message.

The Interfaith Alliance praised the Kentucky ruling but criticized the Texas ruling, saying the latter “threatens the protection of religious freedom for minority religions.”

“Yet another assault on the once-thought untouchable wall of separation between the institutions of religion and government has launched,” said the Rev. C. Welton Gaddy, Interfaith Alliance president. “I had hoped to be able to say that Lady Liberty can take a deep breath of relief, but instead she is gasping for the air of freedom.”

The Union of Orthodox Jewish Congregations, styling itself “as representatives of the faith to whom the Ten Commandments were initially given on Sinai,” applauded both rulings.

They were “a victory for a sensible and moderate approach to the Constitution’s protection of religious liberty and defeat for the extremists of both political poles,” spokesman Nathan Diament said.

As the Supreme Court closed its 2004-05 term, Justice Souter’s majority opinion in the Kentucky case said that when the government openly favors religion, it violates the First Amendment’s establishment clause, which prohibits Congress from supporting a national religion.

“By showing a purpose to favor religion, the government sends the … message to … nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members,” he said.

Justice Souter noted that the majority do not think a sacred text can never be integrated constitutionally into a governmental display on the subject of law or American history, in effect, saying the question of displaying potential religious material in courthouses had to be considered on a case-by-case basis.

After two Kentucky counties each posted large, readily visible copies of the Ten Commandments in their courthouses, the American Civil Liberties Union (ACLU) sued to stop the displays on the grounds that they violated the establishment clause. The counties then adopted nearly identical resolutions calling for a more extensive exhibit intended to show the Ten Commandments were Kentucky’s “precedent legal code.”

A U.S. District Court judge found that the original display lacked any secular purpose because the Ten Commandments were a distinctly religious document. The counties then revised the exhibits to include “The Star-Spangled Banner” and the Declaration of Independence, but a federal appeals court eventually ruled against them.

In a stinging dissenting opinion, Justice Scalia said that what distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority “is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.”

“That is what prevents judges from ruling now this way, now that — thumbs up or thumbs down — as their personal preferences dictate,” he said. “Today’s opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle.”

Justice Scalia said the United States was founded by men who proclaimed their faith in “Almighty God” and took an oath with the phrase “so help me God,” adding that government officials should be permitted to “acknowledge God” and show their belief in a “single Creator.”

In writing the majority opinion in the Texas case, Chief Justice Rehnquist noted that it had been 40 years since the monument was placed on the grounds at the state Capitol in Austin and that its display of the Ten Commandments had gone unchallenged until a man who had “walked by the monument for a number of years” brought a lawsuit.

“Those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their belief systems, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to establish religion,” he said.

“The public visiting the Capitol grounds is more likely to have considered the religious aspect of the tablets’ message as part of what is a broader moral and historical message reflective of a cultural heritage. For these reasons, the Texas display falls on the permissible side of the constitutional line,” he said.

Justice Stevens, in the dissenting opinion, argued that the “sole function of the monument” was to display the full text of one version of the Ten Commandments and that it was not a work of art and did not refer to any event in the history of the State.

• Julia Duin contributed to this report.


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