Deciphering The Commandment Case

A tablet of the Ten Commandments, which is located on the grounds of the Texas Capitol Building in Austin, Texas, is seen in a Tuesday Oct. 12, 2004 photo.
Attorney Andrew Cohen analyzes legal issues for CBS News and

The Supreme Court may be divided about the constitutionality of placing the Ten Commandments on public property. But it is not confused. And neither should you be. In two cases that generated different results, the court's majority announced a standard that ought to give God-loving public officials everywhere the guidance they need to be able to get a religious monument placed just about anywhere in their home towns.

If you want to be able to gaze up at all the "Thou Shalts" and "Thou Shalt Nots" with your neighbors, a five-justice majority said Monday, you must incorporate your religious symbol into a larger monument that incorporates secular messages as well. In other words, the court ruled, some God is constitutionally good; all God is constitutionally bad. So if I were you, I would buy stock in companies that chisel the Declaration of Independence or the Constitution into stone. Those kinds of tablets are going to be flying out of landscape places like iPods out of a WalMart now that officials know for sure they are the ticket to Commandment-ville.

There was more than the usual confusion just after the Justices released their two decisions in cases coming from Kentucky and Texas. First, a slim majority ruled that two Ten Commandment displays put up in county courthouses in Kentucky violated the establishment clause of the First Amendment because they contained no plausible secular purpose despite the best post-hoc efforts of local officials to gin up some. Then, that same majority ruled that a Ten Commandments display placed near the Texas State Capital was constitutional and did not breach the wall between the church and state because it was part of a larger display with secular components.

Contradictory results, sure. But not contradictory rulings. The reason Kentucky "lost" and Texas "won" is due to the facts of the two cases were dramatically different. In Kentucky, officials placed the Commandments in the courthouse and then tried to defend their actions by claiming that the tablets represented "the inseparable connection between the ethical conduct of [Kentucky's] legislative body and the Christian principles which permeate our society and its institutions." Oops. That's not constitutional language, or even remotely a legally-permissible rationale, and that's why the court literally ordered the tablets to be struck down (or, at the least, reconfigured in a more legally justifiable way) even after those hapless Kentucky officials tried with the help of new lawyers to remedy their errors.

In Texas, on the other hand, there was no such record that the Commandments had been placed at the State Capital for a purely religious purpose. Indeed, they had been there for decades before anyone had the idea that they might offend constitutional principles. Moreover, the tablet was part of a much larger display of similar symbols that included a replica of the Statute of Liberty, war veterans' monuments, and even a salute to the heroes of the Alamo (it being Texas and all). In that context, the Court's majority declared, whatever religious message the Ten Commandments conveyed was sufficiently neutralized by its surroundings to allow it to pass that elusive First Amendment test.

The hinge between the two cases — the reason why one turned out one way and the other the other way — was Justice Steven G. Breyer, who was the only justice who was a part of both majority opinions. In the Kentucky case, he joined in the eloquent language of Justice David H. Souter, who wrote: "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. This is no time to deny the prudence of understanding the Establishment Clause to stay neutral on religious belief, which is reserved for the conscience of the individual."

Justice Souter's religious "neutrality," of course, is Justice Antonin Scalia's religious "intolerance." The dissent in the Kentucky case — carried also by Chief Justice William Rehnquist, Justices Clarence Thomas and Anthony Kennedy — chided the majority for tolerating, even encouraging, a sort of constitutional hostility toward precisely the sort of religious symbolism that has been around since (and before) the country's inception.