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The Supreme Court Draws the Correct Ten Commandments Line:
Why the Texas Display Was Constitutional, and the Kentucky Display Was Not

Wednesday, Jun. 29, 2005

This week, the Supreme Court handed down its decisions in this Term's much-watched Ten Commandments cases, McCreary and Van Orden. As many observers anticipated, and as I predicted in a prior column, the Court upheld the Texas display, but invalidated the Kentucky display. In so doing, it dealt a blow to those who would coopt government for their religious messages.

Observers may wonder: How can the Court say one display is constitutional and the other is not? It's the same Ten Commandments.

The answer is that as in most government speech cases under the Establishment Clause, context is everything. To be constitutional, the Court made clear, a government Ten Commandments display must be part of a presentation that is educational or historical - not religious. In addition, the government may not overtly endorse any part of the display.

Though the result in these cases was not surprising, one aspect of the decisions surprised many. The pivotal Justice here was not Justice Sandra Day O'Connor, as many had expected, but rather Justice Stephen G. Breyer, who voted with the majority in both cases.

Breyer's propensity to engage in context-dependent reasoning in First Amendment cases made him particularly suited to be a swing vote here - where a nuanced appreciation of context was necessary to draw the required Establishment Clause line.

Why The Kentucky Display Was Held to Be Unconstitutional

First, let's consider the ruling in the McCreary case - which addressed the Kentucky display.

The problem with this display is that it was "in your face." In other words, the county government made very clear its intent to push a particular religious vision. It resisted putting the message in a more neutral context, even after adverse court decisions. The context eventually added was more window dressing than the reflection of any genuine wish to present a historic or educational - rather than a purely religious - Ten Commandments.

Initially, the county had simply displayed a single plaque of the Ten Commandments. It was the Protestant version. (Indeed, the County's attorney told the Supreme Court that county officials did not "even think about whether there were different versions.")

After it was sued and lost, the county added excerpts of religious language from other historical documents to its display. Just to make sure everyone understood it still meant to send a religious message, it also issued a resolution that declared that the Ten Commandments were the basis of the Declaration of Independence and American law, along with mention of Jesus.

Then, when it was sued and lost once again, the county altered the exhibit once again - finally displaying the Ten Commandments in the context of other historical sources of American law. (However, it never repealed or rescinded the resolution declaring the Ten Commandments to be the source of American law.)

None of this subterfuge fooled the Court. It held - in an opinion written by Justice Souter - that because the government's "purpose" was (quite transparently) to promote religion, the display was unconstitutional. In so holding, it applied longstanding Establishment Clause precedents, such as Lemon v. Kurtzman, which held unconstitutional a Pennsylvania statute that provided reimbursement to religious schools for the cost of providing certain secular subjects.

Those who disagree with the Court's holding, then, must support junking what is called "the Lemon test." And indeed, they do: They believe that, contrary to Lemon, the government should be able to stand behind "traditional" religious viewpoints. Claiming that it is impossible ever to discern actual legislative motivation in such circumstances, they say the Court should just throw its hands in the air and give up.

But this was a terrible case in which to try to make this argument. The Kentucky county's purpose could hardly have been more clear here. As it repeatedly made clear, it wanted to display the Commandments on account of their religious significance, and only grudgingly coupled them with other documents to try to hide the true nature of the display.

Accordingly, as it has done in many statutory interpretation cases, the Supreme Court measured the legislature's blatant purpose by its own language: Because it believed the Ten Commandments were the sole source of American law, McCreary County wanted to send that message to its citizens.

This was overt endorsement of a particular religious tradition. Such endorsement simply cannot be squared with the requirement that the government be neutral with respect to each particular religion. This was made clear not only in Lemon, but also by Justice O'Connor in the crèche cases.

The decision is a strong rebuke to those who claim that this is a "Christian country," and that, therefore, the government may back Christian messages without consequence.

In dissent, Justice Scalia suggested the Court was actually being hostile to religion, but that claim is specious. Similarly, conservative groups have argued that the McCreary case is evidence of animus toward religion - and in particular, Christianity.

These claims are hyperbolic at best. When the government fails to endorse a point of view, it hardly means that it is hostile to that point of view - any more than a celebrity who declines to endorse a product is necessarily hostile to that product!

Like all other speakers, religious speakers have an equal right to send their message in the public square: It is their right, under the Free Exercise Clause. They also have the First Amendment right to spread, and to generously fund the spread of, this message - and they do.

But the Establishment Clause says that religious speakers who do send this message, may not coopt government support for it by enlisting the government's stamp of approval.

Justice Scalia's opinion, sadly, ignores this simple distinction. It attempts - apparently intentionally - to conflate speech by private speakers in the public square, with speech by the government. Not only is Scalia comparing apples and oranges, it seems he is doing so with the purpose of inflaming an already-ugly cultural clash.

Why the Texas Display Was Held to Be Constitutional

That brings us to the Van Orden case - and the Texas display. At the heart of the Texas State Capitol grounds, the monument at issue sits amidst sixteen other, nonreligious monuments -- mostly to war veterans.

Unlike in the Kentucky case, the monument didn't end up in this broader context as the result of litigation, or the result of money from government coffers. Rather, it was donated by a private group -- the Order of the Eagles, which has donated displays of the Ten Commandments to governments all over the country - and voluntarily placed among other, nonreligious monuments.

Chief Justice Rehnquist wrote the opinion upholding the constitutionality of the Texas display. That opinion makes clear that the display on government property, at the government's behest, of material with a religious viewpoint, is not always unconstitutional. Rather, the constitutionality of such a display depends on context.

Many Ten Commandments displays will be upheld based on the precedent set by Van Orden. When citizens see them, in their broader context, they will receive a message of inclusion of religious viewpoints - not of endorsement of them. And that is as it should be.

Justice Breyer - who, again, was the swing vote for the majority -- wrote a tepid separate opinion, concurring in the majority's judgment (and therefore providing the crucial fifth vote), but not necessarily concurring in its reasoning. He relied not only on the broader context of the non-religious monuments, but also on the fact that no one had objected to the display for years.

He seems to have reasoned, quite sensibly, that if viewers had indeed interpreted the monument as endorsing a particular religious viewpoint, someone would doubtless have found it offensive, and complained. In the end, the Texas display was innocuous, while the Kentucky display was "in your face." The one is constitutional because it does not reach out to give offense to those who are from other faiths, while the other fails because the offense is so blatant. Those who claim they cannot tell the difference between the two are intentionally shutting their eyes to what is quite an obvious difference.

Beyond the Ten Commandments: The Larger Contours of the Debate

America is in the midst of a culture war between those contemporary Christians who would claim ownership of this culture, and those - Christian and otherwise - who believe in this country's, and our Constitution's, historical allegiance to nonestablishment principles.

This war pits what is certainly not a majority - the "Christian country" advocates - against a silent majority - the government neutrality advocates. And in this war, the Ten Commandments fracas the Court just resolved was simply one battle.

Meanwhile, the gay marriage battle goes on, with the battle lines basically the same. "Christian country" advocates argue that even secular law should be guided -- if not actually dictated -- by a particular religious tradition. Those who believe in the church/state divide, however, believe the meaning of civil marriage is broad enough to encompass both the definition that marriage is between a man and a woman, and others, besides.

The good news is that once again this Court has been an advocate of common sense and pragmatic judgment. This is a moderate Court in all of the best senses of that term.

It may seem lucky that our Supreme Court has chosen to quell the propensity today to treat neutrality as hostility. But in a sense, this is more structure than luck:

Our Constitution - with its guarantee of an independent, life-tenured judiciary, its Free Exercise Clause, and its Establishment Clause - is to be thanked for the fact that in our society, the war over religion remains largely a war of words, not guns.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on First Amendment and other constitutional issues can be found on this site. Her email address is Professor Hamilton's book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), has just been published.

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