Ten Commandments Revisited

Yesterday, the Supreme Court rendered its decisions in the two cases related to Ten Commandments displays. In McCreary County, Kentucky v. ACLU of Kentucky, the Court held that the display of large, readily visible framed copies of the Ten Commandments in county courthouses violated the Establishment Clause of the Constitution, and this violation was not remedied when the counties, after initiation of the lawsuit, added displays of secular documents containing religious references. In Van Orden v. Perry, the Court held that a donated 6-foot-high monolith inscribed with the Ten Commandments, added to a preexisting display outside the courthouse that already contained a few dozen monuments and markers, did not violate the establishment clause.

I have provided links to the full text of the opinions at the end of this post, but I have not yet had a chance to thoroughly review both of these lengthy opinions (75 pages each). I skimmed the summaries at the beginning of the opinions, and the outcome of these cases seems to display the kind of good sense and reasonable balance that, as I said in my post in March, the courts have generally displayed in these Establishment Clause cases. The opinions did not provide the kind of bright-line test that many observers were hoping for, and some have said the opinions have only muddied the waters further, but these don't seem to be the kind of cases that are suitable to bright-line tests. The two opinions in conjunction lead to the quite reasonable conclusion that there are circumstances in which a display of religious material does not endorse a religion and there are circumstances in which it does.

But the sense of balance I feel from these opinions is somewhat artificial. The reality is, four justices (Kennedy, Rehnquist, Scalia and Thomas) thought both displays were constitutionally acceptable, while four justices (Ginsburg, O'Connor, Souter and Stevens) thought both displays were constitutionally unacceptable. The only justice who agreed with the result in both cases, who thought the Kentucky display was unacceptable and the Texas display was acceptable, was Justice Breyer. So ultimately, the court's decision does not genuinely reflect the court's conclusion that some displays are acceptable and some are not; rather, it reflects one judge's opinion that some are and some aren't, who agreed with four judges in one case and the other four judges in another case.

I may have more to say about this when I've had a chance to read the whole opinions, but I wanted to get the links to the opinions out there ASAP for those who are interested. As you may have noticed, I have a certain level of contempt for media outlets that compress information through the funnel of their personal bias (both liberal and conservative) without giving you the tools to draw your own conclusion.

Links:

• McCreary County, Kentucky v. ACLU of Kentucky opinion from the Supreme Court's website.
• Van Orden v. Perry opinion from the Supreme Court's website
• My post from March, discussing the Jewish community's reaction to the controversy
• Judaism 101 on the Ten Commandments