Court Split Over Commandments

"The road map is keep your mouth shut about the religious purpose, talk about secular and historical things, and you can probably get away with it," said Douglas Laycock, a professor of constitutional law at the University of Texas.

Certainly the two cases proved divisive for the court itself, with Justice Antonin Scalia reading a passionate dissent on the Kentucky ruling from the bench. Scalia said the decision was inconsistent with the Founding Fathers' own views and "ratchets up this court's hostility to religion."

He invoked the experience of Sept. 11, 2001, noting that he had been in Rome on that day, and that after President Bush had concluded his speech to the nation with "God Bless America," a European judge had confided that he was sad Europe's leaders no longer make such religious references in their speeches.

Scalia was joined in full by Rehnquist and Justice Clarence Thomas, and in part by Justice Anthony M. Kennedy.

But Justice David H. Souter, who wrote the opinion in the Kentucky case, joined not only by Breyer but also by Justices John Paul Stevens, Sandra Day O'Connor and Ruth Bader Ginsburg, warned listeners in the courtroom that Scalia would "allow government to espouse the core religious beliefs of some religions."

In his written opinion, Souter argued that strict official "neutrality" toward religion is the best antidote to contemporary culture wars.

"We are centuries away from the St. Bartholomew's Day Massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable," he wrote. "This is no time to deny the prudence of understanding the [First Amendment] to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual."

The two Kentucky counties, McCreary and Pulaski, first posted copies of the King James version of the commandments in their respective courthouses in the summer of 1999.

After the ACLU sued, the two counties passed resolutions calling the commandments the "precedent legal code" for Kentucky's laws. They also added other religious-themed historical documents, such as President Abraham Lincoln's declaration of a national day of prayer in 1863.

After a federal judge ordered that display taken down in 2000, the counties added several secular documents, such as the Magna Carta and the lyrics of "The Star-Spangled Banner."

But Souter wrote that the changes could not disguise the counties' true purpose, which, he said, was "to emphasize and celebrate the Commandments' religious message."

The Texas monument is one of 38 such items on the sprawling 22-acre state Capitol grounds. It features an eagle grasping the American flag; an eye inside a pyramid; two small stone tablets; two Stars of David; two Greek letters -- Chi and Ro -- symbolizing Christ; and a large-print text of the commandments.

A homeless man, Thomas Van Orden, sued for the monument's removal, saying it conveyed an offensive state endorsement of religion each time he walked by it.

But Breyer was joined in permitting the monument by Rehnquist, who wrote on behalf of himself, Scalia, Kennedy and Thomas that "the Ten Commandments have an undeniable historical meaning. . . . Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the [First Amendment.]

The cases are McCreary County, Ky., v. American Civil Liberties Union of Kentucky , No. 03-1693, and Van Orden v. Perry , No. 03-1500.