Moses and Ten Commandments on rear facade of Supreme Court building
With its contrary, split decisions yesterday on the Ten Commandments, the U.S. Supreme Court is building on a confusing trail of jurisprudence that strays from the Constitution, charged many conservative public defenders and activists.
The high court, ruling on the issue for the first time in 25 years, allowed a Ten Commandments monument at the Texas state Capitol but struck down displays at two Kentucky courthouses.
In the Kentucky case, decided 5-4, the court declined to ban all displays on government property, saying some, like its own courtroom frieze, are allowed if they have a neutral purpose, such as honoring the nation’s legal history. The courthouse displays included secular documents, but the high court determined that the organizers had a religious purpose. In the Texas case, the court ruled the granite monument at the state Capitol in Austin to be a legitimate tribute to the nation’s legal legacy.
Evangelical Christian activist D. James Kennedy — noting the high court presides under a display of Moses and the Ten Commandments — said the decisions are a “consequence of the court’s abandonment of the plain text of the Constitution.”
“Having departed from the words of our nation’s supreme law, which each justice swore an oath to uphold, the court has, in effect, amended the Constitution to make it mean and say something at odds with the text of the Constitution and with American history,” Kennedy said.
“In the process, it has left a trail of confused and confusing jurisprudence that has left lower courts puzzled and perplexed.”
Kennedy says the First Amendment “could not be more clear” in its declaration that “Congress shall make no law respecting an establishment of religion.”
“These Ten Commandments displays are not laws — they clearly have no legal force,” he argued. “They are not a religion. There is no ‘Ten Commandments’ religion. In fact, the Ten Commandments are revered and followed by at least two religions — Judaism and Christianity. And, finally, a mere display of the Ten Commandments does not ‘establish’ a religion.”
The displays, however, acknowledge God, he said, which is a foundation of the United States.
“Our nation came into being because we acknowledged God,” he said. “Independence, the founders said, was something to which they were entitled by ‘the laws of nature and of nature’s God.’ Without the public acknowledgement of God, who is mentioned four times in the Declaration of Independence, America would not exist.”
Kennedy argued further that the “inalienable rights” with which American citizens are endowed, are guaranteed in the Ten Commandments.
“The right of private property, gravely injured last week by the high court, is guaranteed in the eighth commandment which states, ‘Thou shalt not steal,’” Kennedy explained. “Our right to life is guaranteed in the sixth commandment, ‘Thou shalt not kill.’ The rights that we have come from the guarantees God has given us by the Commandments. Do away with the Ten Commandments and you do away with our inalienable rights.”
Vision America President Rick Scarborough concurred with Kennedy, charging the court is “continuing its longstanding misinterpretation of the Establishment Clause.”
“With the First Amendment, the founding fathers wanted to prevent the establishment of a national church — like the Church of England. They most certainly did not intend that the government which they believed was founded on biblical law should be neutral toward religion.”
Scarborough added: “In a way, the Supreme Court decision does us a service. The displays in question had the Decalogue along with secular documents. The clear implication was that the Ten Commandments was in some vague way connected to America, instead of recognizing its centrality.”
Roberta Combs, president of the Christian Coalition of America, said said the decision shows the nation’s top court is completely out of step with the American people.
Polls show about 75 percent of Americans favor public display of the Commandments.
“After over 40 years of tyrannical decisions emanating from the United States Supreme Court and most of the Supreme Court justices being selected by Republican presidents during that time, it is long past time for justices who are being appointed to the Supreme Court to respect the United States Constitution,” she said.
Anticipating a vacancy on the U.S. Supreme Court, the Christian Coalition recently announced formation of its Judicial Task Force with chairmen in every state in the country, created to ensure that the U.S. Senate allows “up or down” votes on all nominees to the federal judiciary.
In Washington, the retirement speculation focuses on Chief Justice William Rehnquist, who often votes with a conservative bloc of three or four, and Justice Sandra Day O’Conner, regarded as a swing vote on many issues.
Scarborough said the split decision underscores “why all of the president’s nominations for the Supreme Court must be men and women who are constitutionalists, who read the Constitution as written, instead of reading their views into it, and who understand that without The Ten Commandments, America would never have happened.”
Guessing ‘hidden purposes’
In the Kentucky case, Justice David Souter wrote in the majority opinion that the displays in county courthouses were impermissible because they were motivated by a religious purpose.
But Stephen M. Crampton, chief counsel for the American Family Associations Center for Law & Policy, said the Supreme Court “should recognize that mere acknowledgement of religion does not equate to impermissible establishment of religion.”
“The court’s second-guessing of the hidden purposes of the Kentucky commissioners smacks of judicial tyranny,” said Crampton. “The court has tightened its grip on every aspect of our lives. These five unelected people in black robes are not declaring law; they are arbitrarily setting social policy for the entire country. The Court missed a tremendous opportunity.”
Focus on the Family Action Chairman James Dobson said “there is a religious witch-hunt under way, one which has infected virtually every level of our government.”
“It is nothing less than historical revisionism to try to use the First Amendment as an excuse to scrub away all governmental references to the Ten Commandments and our Judeo-Christian heritage.”
Attorney Mathew D. Staver, who argued the case before the high court in March, said the decision is historic and will have a significant impact on future court decisions regarding the interaction between church and state.
“This battle is far from over,” said Staver, president and general counsel of Liberty Counsel. “The court should recognize the Ten Commandments are more than an historical relic. The founders would be outraged that we are even debating the constitutionality of the Ten Commandments.”
Tony Perkins, president of Family Research Council, said today’s ruling “is not only denigrating to our culture but it undermines the very laws we already have in place.”
“Forbidding the Ten Commandments opens the door to hostility toward religion, which is contrary to the free exercise clause of the First Amendment,” Perkins said. “Today’s court decision is contrary to the constitutional history of this country.”
The practical effect
Richard Thompson, chief counsel of the Thomas More Law Center, which filed friend-of-the-court briefs in favor of diplays in both cases, said the decisions will have the practical effect of discouraging some public entities from displaying religious symbols.
He pointed to Justice Antonin Scalia’s stinging dissent in the Kentucky case, in which Scalia said, “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.”
Said Thompson: “Justice Scalia got it right. These decisions do not rest on consistently applied principles of law. Thus, the court announced no rule of law, which government entities can depend upon that will give them any reasonable certainty they are complying with the requirements of the Establishment Clause.”
As a consequence, Thompson said, “some local governments will decide not to take a chance and be forced to pay monstrous attorney fee awards to organizations like the ACLU if they lose.”
One political solution, said Thompson, is to remove the statutory attorney fee awards to the prevailing party in these kinds of cases.
“However, I am certain of one thing,” he said, ” this battle is far from over.”
In the Kentucky courthouses, in McCreary and Pulaski counties, the displays originally included only framed copies of the Ten Commandments. After the ACLU sued to remove the displays, the two counties supplemented the framed copies with 11 historical documents, including the Mayflower Compact and the Bill of Rights, calling the new displays the “Foundations of American Law and Government.” The additional documents were chosen because, like the Ten Commandments, they played a significant role in the foundation of our system of law and government.
Despite the additions, a federal trial judge struck down the “Foundations” display because it included the Ten Commandments. On appeal, the United States Court of Appeals for the Sixth Circuit agreed with the trial judge, holding that the original display, which had included only the Ten Commandments, “unconstitutionally tainted” the subsequent “Foundations” display, making them unconstitutional as well. The high court agreed, noting that the Kentucky counties had not sufficiently distanced themselves from any religious purpose in the first displays.
The four dissenting justices — Scalia, Rehnquist, Kennedy and Thomas — criticized the majority’s decision and the majority’s application of the so-called Lemon test, which the dissenters explained can be manipulated to fit whatever result the court wants to achieve.
The Lemon test, formulated by Chief Justice Warren Burger in the 1971 case Lemon v. Kurtzman, has three parts: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.”
The dissenting justices in the Kentucky case noted that even if a government could show that its actual purpose in displaying the Ten Commandments was not to advance religion, the display could still be struck down if a so-called “objective observer” would conclude that the government officials intended to advance religion.
The dissenters charged that the majority’s new use of the Lemon test has ratcheted up the court’s hostility to religion.
Jan LaRue, chief counsel of Concerned Women for America, said the court’s use of the Lemon test is based on the fallacy of the so-called ‘wall of separation between church and state.’”
“The Ten Commandments are a religious text recognized as sacred by most Christians and Jews,” she said. “Nonetheless, posting them on public property as part of a historical display is a legitimate secular purpose. The Commandments are an important part of our laws and history. Each of the Commandments has influenced our federal, state and local laws.”
In the Texas case, the monument had stood on government grounds for more than 40 years. A few ago, Thomas Van Orden, a former criminal defense attorney who became homeless, filed a federal lawsuit against the state asserting appearance of the monument on government property violated the First Amendment.
Both the district court and the United States Court of Appeals for the Fifth Circuit ruled against Van Orden, upholding the display of the Ten Commandments as constitutional. The case then was appealed to the Supreme Court.
The Texas State Capitol Building has a broad array of monuments, plaques, and seals depicting both the secular and religious history of Texas. The Ten Commandments monument was a gift of the Fraternal Order of Eagles, accepted by a joint resolution of the House and Senate in early 1961.
In yesterday’s decision, Justices Rehnquist, Scalia, Kennedy and Thomas, with a concurrence by Justice Breyer, ruled that the display of the Ten Commandments monument on the Capitol grounds was constitutional. In reaching its ruling, however, the Court was divided on what analysis it should apply to decide such cases.
Thus, according to the Law Center’s Thompson, the Supreme Court has provided little guidance for government entities to follow in erecting displays of the Ten Commandments that will pass constitutional muster.