Supreme Court splits on Ten Commandments

In a major showdown over the presentation of religious symbols and sacred text on public property, the US Supreme Court has made it somewhat easier for government officials to justify displays like the Ten Commandments.

But at the same time, the nation's highest court put officials on notice that their motives must be clearly secular for such displays to pass constitutional muster.

In two important church-state rulings announced Monday, the high court upheld a Ten Commandments display in Texas, but struck down one in Kentucky.

The rulings came on a busy final day of the US Supreme Court's 2004-2005 term that included no announced retirement by any justice. Many analysts say an announcement could come at any time.

In one Ten Commandments case the court said an outdoor public presentation of the Decalogue among other monuments on the Texas State Capitol grounds in Austin did not amount to an unconstitutional government promotion of religion.

The majority justices said that while the Texas display was an acknowledgment of a sacred religious text by the government, the public exhibit did not cross the line into impermissible proselytizing. The vote in the Texas case was 5 to 4.

But the high court reached a different conclusion in a Kentucky case involving a Ten Commandments display on the wall of two county courthouses.

The justices ruled 5 to 4 that public officials were not motivated by a necessary secular purpose in ordering the courthouse display. Instead the majority ruled that government officials in the Kentucky case had acted in a way that sought to advance religion in violation of the separation of church and state.

The swing vote determining the outcome in both cases was Justice Stephen Breyer.

In a concurring opinion in the Texas case, Justice Breyer illustrated how close that case was for him. "The circumstances surrounding the monument's placement on the capitol grounds and its physical setting provide a strong, but not conclusive, indication that the Commandments' text as used on this monument conveys a predominantly secular message," he says.

"The determinative factor here, however, is that 40 years passed in which the monument's presence, legally speaking, went unchallenged," Breyer writes. "Those 40 years suggest more strongly than can any set of formulaic tests that few individuals ... are likely to have understood the monument as amounting ... to a government effort to establish religion."

The First Amendment's establishment clause bars the government from taking actions that promote or endorse religion or a particular religious faith.

Some legal scholars hold the view that the establishment clause requires a strict separation between church and state. They say religion is best protected by minimizing potential government entanglements. Others say strict enforcement of separation can force government into a posture of hostility toward religion and the religious.

The high court has carved out a middle position in this ongoing and increasingly heated debate.

Nonetheless, analysts say the two decisions and the sharp split within the court set the stage for more church-state litigation with increasing focus on the context and history of the display. But ultimately the decisions may provide a road map for officials seeking to defend such displays.

"It leaves us litigating each and every one of these cases individually," says Douglas Laycock, a church-state expert and law professor at the University of Texas Law School. "Everyone can manipulate the facts," he says. "The lesson for state governments is, disguise your purpose."

Erwin Chemerinsky, a Duke University Law School professor who argued the Texas case, said future cases will depend on context and history. If the display is part of a broad presentation of sources of law such as exists at the US Supreme Court, the court will probably uphold it, he says. "But the court is always going to be looking at the purpose of the government action, the context, and history."

The decisions come in two different cases, Van Orden v. Perry, involving a Ten Commandments display on the Texas state capitol grounds in Austin, and McCreary County v. ACLU of Kentucky, involving a sequence of Ten Commandments displays on the walls of two county courthouses.

The Texas case involves a six-foot-tall tombstone-like monument donated to the state 40 years ago by a civic group, the Fraternal Order of Eagles.

Scores of similar monuments were donated to cities and towns across the nation as part of a promotion for Cecil DeMille's epic movie "The Ten Commandments." The monuments were displayed without controversy for decades, but in recent years, a series of legal challenges have been launched to have them removed from public property.

The Kentucky case involves an attempt by McCreary County officials to authorize the display of a framed copy of the Ten Commandments in local courthouses.

After the display triggered a lawsuit by the American Civil Liberties Union, officials responded by surrounding the Commandments with other historic documents mentioning God or raising religious themes. Upon obtaining advice from lawyers, the presentation was changed again, this time to include documents considered to have played a foundational role in the development of American law, including the Ten Commandments.

A federal appeals court upheld the Texas display, but a different appeals court panel struck down as unconstitutional the display in Kentucky.

Writing for the majority in the Kentucky case, Justice David Souter said that government officials had acted with an improper purpose in posting the Ten Commandments in courthouses. "When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment clause value of official religious neutrality," Souter writes.

"A purpose to favor one faith over another, or adherence to religion generally, clashes with the understanding that liberty and social stability demand a tolerance that respects the religious views of all citizens," he says.

He says the high court is not saying that a sacred text can never be integrated constitutionally into a governmental display on law or history. He cited as an example the frieze in the high court's own courtroom depicting Moses holding tablets with 17 other lawgivers.

Prior to Monday's rulings, the high court had last decided a Ten Commandments case in 1980, when the justices, in a 5-to-4 ruling, struck down a Kentucky law requiring the Decalogue be posted in public school classrooms.

"The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature," the high court said in 1980. "The Ten Commandments are undeniably sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact."

The Ten Commandments issue was the subject of extensive public debate in 2003 when Alabama Supreme Court Justice Roy Moore refused to obey a federal court order that he remove a 2-1/2 ton Ten Commandments monument he had placed in the rotunda of the state supreme court building. He was removed from office.

That monument is currently on a nationwide tour visiting various churches that support Mr. Moore's cause. It has become a symbol to many religious conservatives of what they view as a concerted campaign to erase any mention of God or religion from the public square in America.

• Linda Feldmann contributed to this report.