THE SUPREME Court's decisions yesterday on displays of the Ten Commandments on public property were not a model of clarity or judicial consensus. To resolve two cases, one from Texas and the other from Kentucky, the justices delivered 10 different opinions -- one, we suppose, for each commandment in the Decalogue. These ran the gamut from Justice John Paul Stevens's strict separation of church and state, under which both displays would have to be removed, to Justice Clarence Thomas's radical suggestion that the First Amendment's establishment clause does not apply to state governments at all. In the end, the court eschewed either a blanket prohibition or any general permission for Ten Commandments displays. One five-justice majority ruled the Kentucky display beyond the pale; another -- with Justice Stephen G. Breyer switching sides -- held that Texas's could remain. That general guidance is constructive.
Ten Commandments displays are a surprising new focal point in the culture wars, for they have existed with little controversy for a long time. Because of the varying role that images of the tablets play in American society, history and religious life, assessing such displays under modern First Amendment law can be quite hard. When demagogues such as former Alabama chief justice Roy S. Moore stick monuments in government buildings for the simple purpose of advancing religion, the First Amendment is certainly offended. On the other hand, few people object to the tablets' presence on the wall of the Supreme Court as part of the court's carved display of lawgivers. Context is obviously critical -- and the court's decisions reflect the fact that in context, these two displays are quite different.
The Kentucky displays are simply an effort to promote religion. Two counties put the commandments in their courthouses, one specifically under legislative direction to post it "in 'a very high traffic area' of the courthouse." After getting sued, the counties passed resolutions calling the commandments "the precedent legal code upon which the civil and criminal codes of the Commonwealth of Kentucky are founded." They also added bits of historical documents expressing religious themes and, later, surrounded the Decalogue with patriotic and historically significant law texts. But as Justice David H. Souter put it for the court, these changes do not save the display. Rather, they smack of efforts "to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality."
The Texas display, a stone monument on the grounds of the state capitol, is a different matter. Its history is not especially evangelistic; it was the gift of a fraternal organization. It appears amid other monuments containing various symbols. It has also, as Justice Breyer notes in a key concurrence in the case, been there a long time, since 1961, without raising hackles. So while its purpose is not entirely secular, it is not part of any effort to force religion down nonbelievers' throats.
In striking down the Kentucky counties' displays while allowing Texas's, the court sends a strong message that new displays created specifically to promote religion will get the most exacting of judicial scrutiny. But it also suggests that it will grandfather in longstanding monuments whose uprooting, as Justice Breyer put it, would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid." The court's approach may not be philosophically satisfying, but in practical terms, it isn't a bad way to evaluate public religious monuments.