WASHINGTON (By David Stout, NYTimes) June 27, 2005 - The Supreme Court ruled today that displaying the Ten Commandments on government property does not necessarily violate the constitutional principle that there must be a separation between church and state.
In a pair of 5-to-4 rulings, the court said the display of the Ten Commandments in a 22-acre park at the Texas State Capitol was proper, but that the displays of the Commandments in two county courthouses in Kentucky were so overtly religious as to be impermissible.
The rulings, the first by the court in a quarter-century on the emotional issue of the proper place of the Commandments in American life, conveyed the message that disputes over such religious displays must be decided case by case, and that the specific facts are all important.
Writing for the court, Chief Justice William H. Rehnquist noted that at the Texas Capitol in Austin, a six-foot monolith displaying the Commandments was just one of 17 sculptures. "The inclusion of the Commandments monument in this group has a dual significance, partaking of both religion and government, that cannot be said to violate the Establishment Clause," the chief justice wrote.
Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Stephen G. Breyer sided with the chief justice, with Justice Breyer calling the Texas dispute a difficult borderline case. The dissenters were Justices Sandra Day O'Connor, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. Justice Stevens said there should be "a strong presumption against" displaying religious symbols on public property, and that the Texas display embodied a message that was "quite plain: This state endorses the divine code of the 'Judeo-Christian' God."
The Establishment Clause of the First Amendment decrees that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," and the Supreme Court has long held that the same rule must be applied to the states.
"While the Commandments are religious, they have an undeniable historical meaning," Chief Justice Rehnquist wrote. "Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause."
But he added pointedly, "There are, of course, limits to the government's display of religious messages or symbols."
And those limits were exceeded in the Kentucky displays, the court held in an opinion by Justice Souter and joined by Justices Stevens, O'Connor, Ginsburg and Breyer. "The reasonable observer could only think that the counties meant to emphasize and celebrate the religious message," the majority held. "The display's unstinting focus was on religious passages, showing that the counties posted the Commandments precisely because of their sectarian content."
Dissenting were Chief Justice Rehnquist and Justices Scalia, Thomas and Kennedy. Justice Scalia wrote, "Acknowledgement of the contribution that religion has made to our nation's legal and governmental heritage partakes of a centuries-old tradition."
Although the justices offered nuance in their decisions today, advocacy groups responded in more stark terms.
"This is a mixed verdict, but on balance it's a win for separation of religion and government," the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said in a statement on his group's Web site. "The rulings make it clear that government may not display the Ten Commandments for religious purposes."
"Public buildings belong to everyone," he added. "America is a diverse country and our government should not send the message that some faiths are preferred over others. Public buildings should display the Bill of Rights, not the Ten Commandments."
On the other side, James Dobson, chairman of Focus on the Family, denounced the rulings as further evidence that "there is a religious witch hunt under way, one which has infected virtually every level of our government," according to a statement reported by Agence France-Presse.
"The court has failed to decide whether it will stand up for religious freedom of expression, or if it will allow liberal special interests to banish God from the public square," Dr. Dobson said.
The backgrounds of the Texas and Kentucky disputes were different in a way that the court found vitally important. The Texas Ten Commandments monument was donated in 1961 by the Fraternal Order of Eagles and was just one of thousands donated by the fraternity across the country with the support of Cecil B. DeMille, the director, who was promoting his movie "The Ten Commandments." Thomas Van Orden, a suspended lawyer, challenged the display in a lawsuit filed in 2002, after he became homeless.
The four decades between the erection of the monument and the challenge strongly suggest that there was little perception among the public that the Austin display was a government attempt to establish religion, the justices in the majority reasoned.
The crucial difference in the Kentucky case was that the Commandments were first displayed by themselves on the courthouse walls, and government officials did not display accompanying historical documents until after the American Civil Liberties Union complained about the Commandments exhibits.
"An observer would probably suspect the counties of reaching for any way to keep a religious document on the walls," the majority observed.
The majority noted that neither a federal district court nor the United States Court of Appeals for the Sixth Circuit had found any "valid secular purpose" in the courthouse Commandments displays. In the Texas case, on the other hand, both a district court and the United States Court of Appeals for the Fifth Circuit had agreed that there was a valid secular purpose to the displays.
The Texas case is Van Orden v. Perry, No. 03-1500. Gov. Rick Perry is named in his capacity as chairman of the State Preservation Board. The Kentucky case is McCreary County v. the A.C.L.U. of Kentucky, No. 03-1693. Pulaski is the other Kentucky county that is a party in the case.
The last time the Supreme Court ruled on a Ten Commandments case was in 1980, when it invalidated a Kentucky law that required the posting of the Ten Commandments in every public school classroom.
The Bush administration endorsed the Commandments displays in both cases. When the two cases were argued before the Supreme Court on March 2, Justice Scalia noted that each of the court's sessions begins with the invocation, "God save the United States and this honorable court."
Those arguments seemed to presage the nuanced opinions handed down today, especially when Justice O'Connor exclaimed, "It's so hard to draw the line!"
Even though he lost the case, Erwin Chemerinsky, who represented Mr. Van Orden, said something during the arguments that turned out to be true today: "Context matters enormously."
