June 27, 2005
Supreme Court: No Ten Commandments displays in Courthouses
WASHINGTON — The Supreme Court struck down Ten Commandments displays in courthouses Monday, holding that two exhibits in Kentucky crossed the line between separation of church and state because they promoted a religious message.
The 5-4 decision, first of two seeking to mediate the bitter culture war over religion’s place in public life, took a case-by-case approach to this vexing issue. In the decision, the court declined to prohibit all displays in court buildings or on government property.
In a stinging dissent, Justice Antonin Scalia worried publicly about “the dictatorship of a shifting Supreme Court majority.” The justices voting on the prevailing side Monday left themselves legal wiggle room on this issue, however, saying that some displays — like their own courtroom frieze — would be permissible if they’re portrayed neutrally in order to honor the nation’s legal history.
But framed copies in two Kentucky courthouses went too far in endorsing religion, the court held.
“The touchstone for our analysis is the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion,” Justice David H. Souter wrote for the majority.
“When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment clause value of official religious neutrality,” he said.
Souter was joined in his opinion by other members of the liberal bloc — Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer, as well as Reagan appointee Sandra Day O’Connor, who provided the swing vote.
In his dissent, Scalia argued that Ten Commandments displays are a legitimate tribute to the nation’s religious and legal history.
Government officials may have had a religious purpose when they originally posted the Ten Commandments display by itself in 1999. But their efforts to dilute the religious message since then by hanging other historical documents in the courthouses made it constitutionally adequate, Scalia said.
In his dissent, Scalia blasted the majority for ignoring the rule of law to push their own personal policy preferences.
“What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle,” Scalia wrote.
He was joined in his opinion by Chief William H. Rehnquist, as well as Justice Anthony Kennedy and Clarence Thomas. “In the court’s view , the impermissible motive was apparent from the initial displays of the Ten Commandments all by themselves: When that occurs: the Court says, a religious object is unmistakable,” he wrote. “Surely that cannot be.”
“The Commandments have a proper place in our civil history,” Scalia wrote.
The case was one of two heard by the Supreme Court in March involving Ten Commandments displays in Kentucky and Texas. That case asks whether the Ten Commandments may be displayed on the grounds outside the state capitol.
The cases marked the first time since 1980 the high court tackled the emotional issue, in a courtroom boasting a wall carving of Moses holding the sacred tablets.
A broader ruling than the one rendered Monday could have determined the allowable role of religion in a wide range of public contexts, from the use of religious music in a school concert to students’ recitation of “under God” in the Pledge of Allegiance. It is a question that has sharply divided the lower courts in recent years.
But in their ruling Monday, justices chose to stick with a cautious case-by-case approach.
Two Kentucky 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 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.
Ten Commandments displays are supported by a majority of Americans, according to an AP-Ipsos poll. The poll taken in late February found that 76 percent support it and 23 percent oppose it.
The last time the Supreme Court weighed in on the issue was 1980, when it struck down a Kentucky law requiring Ten Commandments displays in public classrooms.
The case is McCreary County v. ACLU, 03-1693.
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