Mixed rulings on religious displays issue

Supreme Court says some Ten Commandments displays OK, some not.

WASHINGTON -- The Supreme Court gave government officials a mixed message about Ten Commandments displays on public property: You can put them up, just don't be too religious about it.

In its first rulings on the church-state issue in a quarter-century, a closely divided court said a 6-foot granite monument that proclaims "I AM the LORD thy God" outside the Texas Capitol is allowed partly because it sits in a vast park that "suggests little or nothing of the sacred."

But in a second 5-4 decision Monday, it struck down framed copies of the Ten Commandments in two Kentucky courthouses, even though it was surrounded by other nonreligious documents, because officials had previously stated their purpose was to promote religion.

"What the rulings say is when a government overtly endorses a particular religious viewpoint or tradition, it's unconstitutional," said Marci Hamilton, a church-state expert at Cardozo School of Law. "Displays are OK if you don't have an in-your-face declaration that the government stands behind Christian tradition."

She and other legal experts said the rulings will bring additional litigation as displays are challenged by both sides case-by-case.

"The court has found no single mechanical formula that can accurately draw the constitutional line in every case," wrote Justice Stephen G. Breyer, the only justice to vote with the majority in both cases.

The court said the key to whether a display is constitutional hinges on whether there is a religious purpose behind it. But the justices acknowledged that question would often be controversial.

"The divisiveness of religion in current public life is inescapable," wrote Justice David H. Souter.

He said it was important to understand the Constitution's Establishment Clause, which requires the government to stay neutral on religious belief. Questions of such belief, he said are "reserved for the conscience of the individual."

In both cases, Breyer voted with the majority. In the Kentucky case barring the courthouse displays, that left him with the court's more liberal bloc, where he normally votes. In the Texas case, he wound up making a majority with the more conservative justices.

Justice Sandra Day O'Connor, often a swing vote, joined the liberals in both decisions.

The rulings mean thousands of Ten Commandments displays around the nation will be validated if their primary purpose is to honor the nation's legal, rather than religious, traditions. Location also will be considered, with wide-open lots more acceptable than schoolhouses filled with young students.

In sharply worded opinions, Justice Antonin Scalia said a "dictatorship of a shifting Supreme Court majority" was denying the Ten Commandments' religious meaning. Religion is part of America's traditions, from a president's invocation of "God bless America" in speeches to the national motto "In God we trust," he wrote.

"Nothing stands behind the court's assertion that governmental affirmation of the society's belief in God is unconstitutional except the court's own say-so," Scalia wrote.

The justices voting on the prevailing side in the Kentucky case left themselves legal wiggle room, saying that some displays inside courthouses -- like their own courtroom frieze -- would be permissible if they were portrayed neutrally in order to honor the nation's legal history.

The Supreme Court's frieze depicts Moses as well as 17 other figures, including Hammurabi, Confucius, Napoleon and Chief Justice John Marshall. Moses' tablets do not have any writing.

The monument on the grounds of the Texas Capitol -- one of 17 historical displays on the 22-acre lot -- was determined to be a legitimate tribute to the nation's legal and religious history.

Chief Justice William H. Rehnquist argued that the Texas monument with the words "I AM the LORD thy God" was a permissible acknowledgment of religion's place in society.

Breyer, who provided the fifth vote in the holding, did not join Rehnquist's opinion. As a result, his separate concurrence, concluding that the Texas display was predominantly nonreligious and thus constitutional because it sat in a vast park, was the controlling viewpoint.

The rulings were the court's first major statement on the Ten Commandments since 1980, when the justices barred its display in public schools.

"This is a mixed verdict, but on balance it's a win for separation of religion and government," said the Rev. Barry W. Lynn, executive director of Americans United for the Separation of Church and State. "The justices wisely refused to jettison long-standing church-state safeguards. We're thankful for that."

On the other side, Jay Sekulow, chief counsel of the American Center for Law and Justice, said: "It is very encouraging that the Supreme Court understands the historical and legal significance of displaying the Ten Commandments. Unfortunately, the high court's decision in the Kentucky case is likely to create more questions."

In Kentucky, two counties originally hung the copies of the Ten Commandments in their courthouses. After the ACLU filed suit, the counties modified their displays to add other documents demonstrating "America's Christian heritage," including the national motto of "In God We Trust" and a version of the Congressional Record declaring 1983 the "Year of the Bible."

When a federal court ruled those displays had the effect of endorsing religion, the counties erected a third Ten Commandments display with surrounding documents such as the Bill of Rights and "The Star-Spangled Banner" to highlight their role in "our system of law and government."

The Cincinnati-based 6th U.S. Circuit Court of Appeal subsequently struck down the third display as a "sham" for the religious intent behind it.

In Texas, the Fraternal Order of Eagles donated the exhibit to the state in 1961, and it was installed about 75 feet from the Capitol in Austin. The group gave thousands of similar monuments to American towns during the 1950s and '60s.

Thomas Van Orden, a former lawyer who is now homeless, challenged the display in 2002. He lost twice in the lower courts in holdings the Supreme Court affirmed Monday.

Dissenting in the Texas case, Justice John Paul Stevens argued the display was an improper government endorsement of religion.

"If a state may endorse a particular deity's command to 'have no other gods before me,' it is difficult to conceive of any textual display that would run afoul of the Establishment Clause," he said.

The cases are McCreary County v. ACLU, 03-1693, and Van Orden v. Perry, 03-1500.

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On the Net:

The ruling in McCreary County v. ACLU is available at:

http://wid.ap.org/documents/scotus/050627mccreary.pdf

The ruling in Van Orden v. Perry is available at:

http://wid.ap.org/documents/scotus/050627vanorden.pdf