Supreme Court Issues Split Decision on Ten Commandments Cases

c. 2005 Religion News Service WASHINGTON _ In a split decision on a divisive church-state issue, the U.S. Supreme Court declared Monday (June 27) that displays of the Ten Commandments in Kentucky courthouses are unconstitutional, while a monument carved with the biblical laws outside the Texas Capitol passes constitutional muster. Justice David Souter, writing for […]

c. 2005 Religion News Service

WASHINGTON _ In a split decision on a divisive church-state issue, the U.S. Supreme Court declared Monday (June 27) that displays of the Ten Commandments in Kentucky courthouses are unconstitutional, while a monument carved with the biblical laws outside the Texas Capitol passes constitutional muster.

Justice David Souter, writing for a 5-4 majority in the Kentucky case, found “no legitimizing secular purpose” for the courthouse displays. At the same time, Chief Justice William Rehnquist, also writing for a 5-4 majority in the Texas case, said the capitol monument is “far more passive” than the commandments on schoolhouse walls that were struck down by the high court in 1980.


Taken together, the decisions indicate the justices’ determination that there are instances _ taken on a case-by-base basis _ where the biblical laws may be placed in a government context.

In their separate opinions, Souter and Rehnquist both pointed out the frieze in their courtroom that depicts lawgivers, including Moses holding the Ten Commandments.

“Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause,” Rehnquist wrote.

The cases figure into a much wider debate over the appropriateness of similar displays _ hundreds, if not thousands of them _ across the country. Dozens of court cases have challenged whether these religious symbols represent a government endorsement of religion. The most prominent case was that of former Alabama Chief Justice Roy Moore, who was ousted from his post after he refused to remove his 5,300-pound Ten Commandments monument from the state’s judicial building.

The closely watched cases ended the high court’s term with “the perfect compromise,” said Michael Barkun, professor of political science at Syracuse University’s Maxwell School.

“Context was essential,” Barkun said in an interview. “It’s not simply the text here, but what does the text mean in a particular setting. Clearly, the text has a quite different significance inside a courtroom _ in the presence of the judges, litigants and attorneys _ than it might on the lawn.”

After legal challenges were filed against the Kentucky displays, officials who had installed them in the courthouses added other documents, such as the Declaration of Independence, to bolster their claim that these were not religious displays but rather an affirmation of the documents’ role in shaping national history.


Souter, however, agreed with lower courts that the purpose of the displays was religious, not educational. In a concurring opinion, Justice Sandra Day O’Connor said the courthouse displays sent “an unmistakable message of endorsement to the reasonable observer.”

Even if some agree with that endorsement, she said, that’s not how the Constitution works.

“It is true that many Americans find the Commandments in accord with their personal beliefs,” she said. “But we do not count heads before enforcing the First Amendment.”

In a dissenting opinion, Justice Antonin Scalia criticized the majority’s interpretation of the law in the courthouses case, saying it appealed to “the demonstrably false principle that the government cannot favor religion over irreligion.” He said the displays’ inclusion of the Ten Commandments did not shift their “apparent secular purpose into one of impermissible advocacy for Judeo-Christian beliefs.”

In the Texas case, the high court considered the appropriateness of a 6-foot granite monument placed outside the state Capitol in 1961 that declares “I am the Lord Thy God” in large letters. The monument is placed alongside other markers to Texas history as part of a 22-acre campus.

In that case, Rehnquist ruled that the monument could be seen as “passive” in part because the man who challenged the monument, Thomas Van Orden, waited six years to file suit after he first encountered it. But in a dissenting opinion, Justice John Paul Stevens wrote that it is incorrect to view the Texas Capitol monument as a “passive acknowledgment of religion.”


“This nation’s resolute commitment to neutrality with respect to religion is flatly inconsistent with the (Supreme Court) plurality’s wholehearted validation of an official state endorsement of the message that there is one, and only one, God,” he wrote.

Erwin Chemerinsky, the lawyer who represented Van Orden, saw overall success in the rulings despite the loss in his own case.

“Overall, today was an important victory for the Establishment Clause that separates church and state,” he said in a conference call with reporters. “The government is still limited on what it can do with religious symbols on government property.”

Attorney Mat Staver, who unsuccessfully argued for the inclusion of the commandments in Kentucky, said the nation’s founders would be disappointed in the debate over the constitutionality of postings of the Ten Commandments.

“This battle is far from over,” he said in a statement from his Florida-based Liberty Counsel legal advocacy organization.

Outside the Supreme Court, press conferences mixed with prayers as activists on both sides attempted to gauge the decision’s impact on similar church-state conflicts.


“The problem is what’s next?” said Ellen Johnson, president of American Atheists. “If you can put the Ten Commandments on public property, maybe you can put a cross on public property.”

Jan LaRue, chief counsel of Concerned Women for America, worried about the opposite result.

“With this abominable ruling, you would expect to hear hammers and chisels resurfacing the Court’s own walls and doors that display Moses and the Commandments,” she said in a statement.

(Correspondents Nancy Glass and Heather Horiuchi contributed to this report.)

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Editors: Check the RNS photo Web site at https://religionnews.com for Ten Commandments photos to accompany this story. Also see sidebar, RNS-SCOTUS-REAX, for reaction to the court ruling.

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