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Court’s Rulings on Commandments Raise More Questions Than Answers

June 28, 2005
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The U.S. Supreme Court’s split rulings this week on the public display of the Ten Commandments is likely to lead to further confusion on what’s permissible and what’s not, analysts say. The high court determined that some monuments cast a religious message and therefore violate the separation of church and state.

But taken together, the rulings on two separate but related cases are likely to be viewed as an endorsement of public displays of the Ten Commandments, as long as they are erected with a secular objective.

That means many of the current displays across the country will be allowed to stay, analysts say, and it’s unclear whether more will be constructed.

With these rulings, the justices — in what was widely expected to be the final day of the court presided over by Chief Justice William Rehnquist — did not entirely please either the staunch separationists or the religious conservatives.

In a 5-4 ruling, the high court said two displays in Kentucky courthouses were illegal because they portrayed an overtly religious message.

In his majority opinion, Justice David Souter suggested some displays are appropriate if they’re religiously neutral, including the one in the Supreme Court building itself.

The court also ruled in a separate case, 5-4, that Ten Commandments monuments are permissible on state grounds, such as the display between the Texas State Capitol and Texas Supreme Court in Austin. The court believed the declared purposes of the display, to honor the Fraternal Order of Eagles and promote civic values, were genuine.

The ruling “says clearly that any displays that are put up prospectively, there will have to be a very clear inquiry into the purpose,” said Steven Freedman, director of legal affairs for the Anti-Defamation League. “Historic displays are going to be harder to challenge.”

The rulings garnered mixed reactions from American Jewish groups, most of which have opposed the public display of the Ten Commandments in a religious context.

Some groups that closely monitor the separation of church and state hailed the court for saying government could not endorse religious messages, but those same groups said the court also left much room for the display of religious content on government property, if cloaked behind other purposes.

“It’s going to require them to be circumspect in their intents, which is not a bad thing, but will lead to some hypocrisy,” said Marc Stern, general counsel for the American Jewish Congress.

Orthodox groups held a different view, praising the court’s ruling on the constitutionality of public displays of the Ten Commandments. But some said they were concerned that the rulings suggested that the display of religious content itself ran afoul of the establishment clause of the First Amendment.

“It strains the imagination that displays of the Ten Commandments in courts can be viewed as an establishment of religion,” said Rabbi Abba Cohen, Washington director and counsel for Agudath Israel of America.

“All such displays simply seek to acknowledge the commandments’ historical significance for the rule of law.”

In the Kentucky case, McCreary County v. ACLU, a majority found that the displays of the Decalogue were used to emphasize a religious message, especially since they had first been put up by themselves, before being surrounded by other historical documents after court challenges.

That went too far, Souter said, writing for a majority that included Justices John Paul Stevens, Ruth Bader Ginsberg, Stephen Breyer and Sandra Day O’Connor.

For a display to be constitutional, Souter said, “the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.”

Justice Antonin Scalia said in a dissent that religion was part of the country’s history. He made the case for governmental acknowledgment of a monotheist society, noting the three dominant religions in the country — Christianity, Judaism and Islam — all believe the Ten Commandments were given to Moses.

“Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God,” he wrote. “Both practices are recognized across such a broad and diverse range of the population — from Christians to Muslims — that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.”

In the Texas case, Van Orden v. Perry, Rehnquist said the Ten Commandments are religious, but they can also have a dual purpose. He noted Moses was a lawmaker as well as a religious leader.

“Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause,” he wrote, in an opinion joined by Scalia, Breyer, and Justices Anthony Kennedy and Clarence Thomas.

In a concurring opinion, Breyer stressed that the Texas display had stood for 40 years without being contested. However, he called it a “borderline case.”

Stevens said in a dissent that the monument could not be seen as a passive acknowledgment of religion.

“This nation’s resolute commitment to neutrality with respect to religion is flatly inconsistent with the plurality’s wholehearted validation of an official state endorsement of the message that there is one, and only one, God,” he wrote.

Public displays of the Ten Commandments are supported by a majority of Americans, according to polls. Lawmakers were planning to seek their allowance through a constitutional amendment if the high court had struck them all down.

It remains to be seen whether the split verdict will satisfy religious conservatives, who have rallied for more religious engagement from government.

Roberta Combs, president of the Christian Coalition of America, blasted the decision, suggesting the justices did not respect the Constitution.

“Today’s Supreme Court decision on the Ten Commandments showed once again that the nation’s top court is completely out of step with the American people,” she said. “This must change.”

Jews and Christians have fundamental differences about what belongs on the two stone tablets of the Ten Commandments, and most public displays follow the Protestant tradition. The Jewish version of the Ten Commandments is made up of 13 sentences; Christian variations include 17 sentences.

In the Jewish version, the first line is “I the Lord am your God who brought you out of the land of Egypt, the house of bondage.” That second phrase referring to Egypt does not appear in the Christian text, and some Jews see its omission as a rejection of Jewish tenets — or, at least, an implicit endorsement of a particular religious tradition.

But the court did not discuss the content of the displays at length. Their focus rested more on the context and purpose of erecting a display of the Ten Commandments.

Ironically, the Supreme Court’s own walls include a carving of Moses carrying the Ten Commandments, alongside carvings of Confucius and Mohammed and such historical figures as Caesar Augustus and Napoleon.

Jewish groups do not object to the Supreme Court display because it is seen as part of a broader, historical context that embraces non-religious as well as religious leaders.

Many Jewish groups traditionally have opposed any infringement on the separation of church and state, and have been wary about all but the most bland references to God in government.

Some suggested the rulings’ effect could mirror that of a 1989 ruling on the Christmas nativity scene. The court ruled then that while a nativity scene within a Pittsburgh courthouse was unconstitutional, a Christmas tree and menorah display one block away was not.

The latter display, which was located in a building owned jointly by both the city and the county, included an 18-foot menorah donated by the local branch of Chabad-Lubavitch next to a 45-foot-tall Christmas tree, with a banner reading “Salute to Liberty” at its base.

The court ruled that the menorah and tree were part of an acceptable display for the “winter-holiday season.”

Jewish groups said they have seen some additional Christmas displays since the ruling, but they are often surrounded by menorahs and other holiday symbols.

Conservative groups might try to surround future Ten Commandments displays with historical or other monuments to pass the court’s test, observers say.

The issue is expected to re-emerge, especially since the high court suggested by its rulings that the displays should be analyzed on a case-by-case basis.

“It is certain that this decision will be tested,” Stern said.

JTA intern Avi Mayer in Washington contributed to this report.

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