Court Split Over Commandments

By Charles Lane
Washington Post Staff Writer
Tuesday, June 28, 2005

A sharply divided Supreme Court issued a split decision on the public display of the Ten Commandments on government property yesterday, forbidding framed copies on the walls of two rural Kentucky courthouses while approving a 6-foot-tall granite monument on the grounds of the Texas Capitol in Austin.

In a pair of 5 to 4 votes, the court ruled that the commandments were put up in Kentucky six years ago with the unconstitutional purpose of favoring monotheistic religion but that the Texas monument, erected in 1961, is a less blatantly religious statement tinged with secular historical and educational meaning as part of a group of similar markers on the grounds.

The decisions were announced on a day of high drama at the court, with many of those in attendance waiting -- in vain, as it turned out -- for a retirement announcement from Chief Justice William H. Rehnquist. Justices on both sides of the Ten Commandments issue aimed strong criticism at each other as they read their opinions from the bench.

Yet for all the intensity, the net result of the decisions -- the first on the Ten Commandments from the court in 25 years -- may have been to leave the law more or less unchanged, legal analysts said.

The court did not scrap complicated legal balancing tests it has used to evaluate the constitutionality of governmental religious statements, as some supporters of the public display of the commandments had urged. Nor did it take the opportunity to rule out the official embrace of popular religious symbols, as some opponents of the displays had hoped.

Instead, the decisive vote in the cases was cast by Justice Stephen G. Breyer, who sized up each one in terms of its particular history and his view of the "basic purposes" of the First Amendment, which prohibits the creation of a state religion.

In a separate concurring opinion in the Texas case, Breyer found it "determinative" that the Texas monument, donated by the Fraternal Order of Eagles, had stood for 40 years without anyone's complaining, whereas the Kentucky displays sparked litigation almost as soon as they were put up in 1999.

"This [Texas] display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive," Breyer wrote.

But he added, referring to the Kentucky displays, that "in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not."

Each side in the case claimed victory. Steven R. Shapiro, legal director of the American Civil Liberties Union, whose Kentucky affiliate had challenged the courthouse displays, said that "a majority of the court in both cases has now clearly reaffirmed the principle that government may not promote a religious message through its display of the Ten Commandments."

Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative Christian legal organization that backs the displays, said the decision means many similar monuments provided to state and local governments by the Fraternal Order of the Eagles, along with long-established paintings or sculptures of the commandments, are probably on safe ground.

The court is expected to announce today whether it will hear challenges to the display of the commandments on school property in two Ohio locales; a Harlan County, Ky., display of the commandments on school classroom walls; and a Richland County, Ohio, judge's posting of the commandments on his courtroom's wall.

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