NINE JUSTICES, TEN COMMANDMENTS, AND TWO FAILED MONUMENTS:
An Establishment Clause Dispute Provides Insight Into Supreme Court Divisions

By EDWARD LAZARUS

Tuesday, Mar. 05, 2002

Last week, the Supreme Court decided not to hear an appeal filed by Indiana Governor Frank O'Bannon. O'Bannon wants to erect a 7-foot stone monument on the Indiana statehouse grounds to display the Ten Commandments. However, the U.S. Court of Appeals for the Seventh Circuit held that the planned monument would violate the Constitution's Establishment Clause - which, broadly speaking, prohibits government from advancing religion generally or from favoring one religious creed over another. O'Bannon asked the Court to reverse the appellate decision, but the Court denied his petition.

Ordinarily, when the Supreme Court declines to review a case, the decision is not very noteworthy. After all, the Court accepts only a small fraction of the cases for which review is sought, so any given denial has little significance. But the Court's rejection of the O'Bannon appeal deserves attention - for it is a follow up to a little noted but bitter public dispute that broke out among the Justices last spring. That dispute illuminates both the ideological divisions within the Court and the character of several of the Justices.

The First Ten Commandments Monument Case

The case that sparked the initial spat among the Justices arose because the City of Elkhart, Indiana had placed a six-foot-tall granite monument inscribed with the Ten Commandments in front of its municipal building.

In bold letters, the first two lines of the monument read: "THE TEN COMMANDMENTS - I AM the LORD thy God." Also etched on the pillar were two Stars of David and a symbol composed of the Greek letters Chi and Rho, superimposed upon each other in a fashion commonly used to represent Christ. The monument was dedicated by a Catholic priest, a Protestant minister, and a Jewish rabbi.

As in the O'Bannon case, the U.S. Court of Appeals for the Seventh Circuit declared the monument unconstitutional. The court held that the monument ran afoul of the First Amendment's Establishment Clause because it had both the primary purpose and primary effect of advancing religion.

The City of Elkhart sought Supreme Court review in an attempt to reinstate the monument. However, on May 29, 2001, its petition was denied.

A Dispute Between Justices Rehnquist and Stevens

Like the Court's decision to decline review in O'Bannon's case, the decision to deny review in the Elkhart case would have been unremarkable - but for one thing. In the Elkhart case, Chief Justice Rehnquist decided to publish a dissent from the denial of review that was joined by both Justices Antonin Scalia and Clarence Thomas. Although Justices occasionally publish such dissents, they are rare, and Rehnquist's was especially unusual for several reasons.

First, rather than merely arguing that review should have been granted, as most such dissents do, it tackled the merits of the case (despite the lack of briefing or argument) and argued vehemently that the Seventh Circuit's decision was wrong. Second, Rehnquist's dissent so infuriated Justice John Paul Stevens - due to what he considered to be its slanted presentation of the facts of the case - that Stevens published a rejoinder defending the Seventh Circuit's ruling.

As a political and doctrinal matter, Rehnquist's dissent spoke volumes about the agenda of the Court's right wing and the internal checks on its advancement. As is true in many of the most controversial areas of law, Justices Rehnquist, Scalia, and Thomas favor a radical revision of existing doctrine regarding the Establishment Clause. However, they are held in check by the somewhat more moderate (though still very conservative views) of Justices Sandra Day O'Connor and Anthony Kennedy. Unsurprisingly, these two justices declined to join either Rehnquist's dissent from the denial of review in the Elkhart case or Stevens' rebuttal, preferring to stay out of the dispute entirely.

Kennedy's "Betrayal" of the Conservatives in the Graduation Prayer Case

Early in his tenure, Kennedy was a full fledged member of the Rehnquist-led crusade to dramatically lower the metaphoric wall between church and state in cases involving the Establishment Claue. In 1992, however, Kennedy betrayed his more conservative brethren in a case involving the constitutionality of prayer in public school, Lee v. Weisman.

Before opinions are written, the Justices, at Conference, voice their initial views on pending cases. Justice Kennedy's initial view on Weisman was that 40 years of precedent should be overturned, and prayer in public school allowed. Four other Justices agreed, making up a majority in favor of this view. However, as Kennedy started to write the opinion on behalf of the majority, he had a change of heart. In the end, he switched sides and authored an opinion for a different 5-4 majority, which reaffirmed that prayer in public school violates the Establishment Clause.

It is said around the Court that Scalia has never forgiven Kennedy for this apostasy. And subsequently Kennedy has shown no enthusiasm for granting review in cases - such as those involving the posting of the Ten Commandments, on schoolhouse walls or elsewhere - that would reopen old wounds. Justice O'Connor is equally reticent about picking fights with her natural conservative allies.

After all, in many Establishment Clauses, there is little middle ground - the prayer may be given or must not be; the monument is put up or torn down - and that may make Justices Kennedy and O'Connor uncomfortable.

The Court's Current Equilibrium

As a result of Justices' Kennedy and O'Connor's disinclination to grant review of Establishment Clause cases, Justices Rehnquist, Scalia, and Thomas are consistently left one vote short of the four they need to grant review in cases that would give them a chance to attack current Establishment Clause doctrine. (A petitioner needs only four votes to get review, but of course needs five to prevail in a case - a difference which can lead to all kinds of strategic gamesmanship among the Justices, of which this is only one example.)

The result is that, with respect to the establishment clause - as in the field of abortion rights - the Court has reached a precarious equilibrium. Like Gaul, the Court is divided into three parts. There is a frustrated and angry right wing (Rehnquist, Scalia and Thomas) agitating for radical change. There is a left wing (Breyer, Ginsburg, Stevens and Souter) intent on preserving and perhaps slighting improving the status quo. And there is a small moderate center occupied by O'Connor and Kennedy, who try to steer the Court away from confrontation by voting against review of potentially landmark cases.

Conflating Religious Monuments With Secular Ones

However, the fact that Rehnquist and his two allies cannot get review granted does not stop them from commenting on cases, in dissents to denials of review. And their comments often highlight a deeply troubling aspect of their jurisprudence - its tendency to confuse religious and secular monuments in Establishment Clause cases.

For example, in his dissent in the Elkhart case, Rehnquist compares the Ten Commandments monument, which shared the municipal building lawn with a monument commemorating the Revolutionary War, with the frieze in the Supreme Court's own courtroom depicting history's famous lawgivers, which includes a carving of Moses holding the Ten Commandments. Both, to Rehnquist, are constitutionally permissible.

The comparison, however, does not even pass the laugh test, let alone any legal test. The Court's frieze juxtaposes Moses with other historical legal figures such as Hammurabi, Solon, Justice John Marshall, and half a dozen others. Putting Moses in does not establish or even privilege religion, and leaving him out might be thought to disparage religion. Moses may hold the Ten Commandments, but they exemplify the laws he wrote; they are not a command to the viewer.

In comparison, the Elkhart monument, as mentioned above, is a stand-alone icon bearing Judeo-Christian symbols and declaring in boldface "I AM the LORD thy God." The command - and the establishment of religion - could hardly be clearer.

As Justice Stevens deadpanned in his response to Rehnquist, the "graphic emphasis" of the boldface "I AM the LORD thy God" "is rather hard to square with [Rehnquist's] proposition that the monument expresses no particular religious preference." And the fact that the Elkhart Ten Commandments monument happens to share a lawn with a Revolutionary War monument is as irrelevant as the fact that an atheist might someday stand next to it.

Moreover, Rehnquist's blurring of the line between religious and secular ought to worry the fervently religious as much as it does the atheists - for when the Court constricts the Establishment Clause by deeming few displays genuinely religious, it may also constrict the Free Exercise Clause too.

After all, if the Ten Commandments monument is truly secular, then why shouldn't a state government force a church to take it down and replace it with a different display? The horror we feel at this prospect only underlines the disingenuousness of Rehnquist's view. Rehnquist's approach to the separation of church and state arguably devalues religion even as it purports to exalt it.

Establishment of Religion at the Church Itself

For me, the exchange between Justices Rehnquist and Stevens called to mind the several times during Rehnquist's tenure that law clerks have complained about the Court's practice of erecting a large Christmas tree in the Court's great hall during the winter holidays, and playing a recording of Christmas carols there as well.

Rehnquist's response to such complaints was always an annoyed and somewhat incredulous, "What's your problem? It's Christmas." It was as if he either believed that the Christmas holiday was incontestably secular - something that, in fact, many would passionately dispute, and the lyrics of many carols would belie - or believed that, though religious, it was obviously a legitimate subject of government-sponsored recognition.

Rehnquist's Establishment Clause approach certainly raises a fundamental question about his role as Chief Justice. Surely one attribute of wise judging is the quality of empathy, the ability to see matters through eyes other than one's own - to see, for instance, how a Jewish, Muslim, or nonreligious clerk might perceive the Christmas tree and carols. In treating the Ten Commandments as essentially secular, Rehnquist and his allies have blinders screwed on tight.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.