A split on Commandments

Church And State

`Passive' displays are constitutional

Supreme Court Decisions

June 28, 2005|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

WASHINGTON - A 6-foot-high Ten Commandments monument near the Texas state Capitol can stay, but framed copies displayed with a hodgepodge collection of historical documents in two Kentucky courthouses must go, the U.S. Supreme Court said yesterday as it searched for middle ground on the politically charged issue of religious displays on government property.

The court said generally that such postings are allowed under the Constitution, but only in settings where it is clear that the government is not promoting religion - a case-by-case balancing act that seemed certain to invite a string of challenges.

Advocates on both sides said the pair of narrow, 5-4 decisions underscored the importance of the court's makeup, coming on the same day that Chief Justice William H. Rehnquist was watched closely for any sign that he intends to retire.

Rehnquist, who is 80 and has thyroid cancer, did not tip his hand as the court delivered its final rulings of the term. He wrote the court's majority decision on the Texas monument and, after announcing the fractured breakdown of votes from the bench yesterday morning, drew laughs from the packed courtroom by dryly remarking: "I didn't know we had that many people on our court."

As is customary, Rehnquist then thanked the court's employees for their work during the past year and adjourned court for its lengthy summer recess without a word about his future plans. A retirement announcement by any of the justices still could come in a written release.

His voice raspy and faint, Rehnquist did not elaborate on the Texas decision from the bench. But in the majority opinion, he said that "passive" Ten Commandment monuments such as the 40-year-old display in Austin - one of 17 monuments and memorials on the Capitol grounds - do not violate the constitutional ban on state establishment of religion under the First Amendment.

"Of course, the Ten Commandments are religious - they were so viewed at their inception and so remain," Rehnquist wrote. But, he added: "Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause."

No side could claim total victory in the court's first rulings on Ten Commandment postings in 25 years. An attorney who represented the Kentucky counties that were told to take down their displays said the decisions failed to fully recognize the importance of the Ten Commandments in secular American life.

"This battle is far from over," said Matthew D. Straver, president and general counsel for the Liberty Counsel, a conservative legal group based in Florida that stepped into the Kentucky case. "The court should recognize the Ten Commandments are more than a historic relic. ... We need judges who understand the rule of law and who respect the Constitution."

The Rev. Barry W. Lynn, executive director of the group Americans United, which advocates for strict separation of church and state, called the two rulings a "mixed verdict."

"The court rejected calls by religious right legal groups to give government an unfettered right to display religious symbols," Lynn said. "America is a diverse country and our government should not send the message that some faiths are preferred over others."

The rulings came from a splintered court. Rehnquist was joined in the majority decision in the Texas case by the court's most conservative members, Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy. Justice Stephen G. Breyer, who typically votes with the court's more liberal members, cast the deciding fifth vote that allowed the granite monument to remain on the Capitol grounds in Texas.

Writing his own concurring opinion, Breyer called it a "borderline case" and an example of how context and history must be considered for each display that is challenged.

The case-by-case conclusion was evident in the related case from Kentucky. In another 5-4 decision, led by its liberal members, the court said that framed displays at two local courthouses in Kentucky were plainly intended to promote religion and should be barred.

Justice Sandra Day O'Connor, a moderate conservative, voted against allowing the Ten Commandments displays in both cases. Writing a concurring opinion in the Kentucky decision, she said: "It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment.

"At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travail, while allowing private religious exercise to flourish," O'Connor wrote.

"Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"

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