Eying the possible replacement of Justice Sandra Day O’Connor with nominee Samuel Alito, two Kentucky counties voted to continue defending Ten Commandments displays, saying they are prepared to return to the U.S. Supreme Court.

In June, O’Connor sided with a 5-4 majority that ruled a courthouse display in McCreary and in Pulaski Counties had a religious purpose. The high 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.

But the courthouse displays – part of a “Foundations of American Law and Government” theme – were deemed a promotion of religion.

In posting the display, the Kentucky counties relied in part on an opinion issued by Alito in an appellate court decision involving a Nativity scene in New Jersey.

“The changing composition of the Supreme Court presents an opportunity to clarify this important area of law,” said Mathew D. Staver, president and general counsel of Liberty Counsel, a public-interest legal and policy group representing the counties.

In the New Jersey case, town officials were sued by the ACLU after erecting the Nativity scene. The lower court struck down the display because it had only religious symbols. The town then modified the display to include other holiday symbols. The ACLU filed suit again, claiming the subsequent display was “tainted” by the initial display and arguing that since the initial display had a religious purpose, any subsequent display was unconstitutional.

Alito rejected that argument and upheld the modified display.

The Kentucky decision came the same day as another 5-4 ruling in which the court determined a granite Ten Commandments monument at the Texas state Capitol in Austin to be a legitimate tribute to the nation’s legal legacy.

In the Kentucky case, the majority argued the courthouse plaques had a religious purpose because they initially were displayed by themselves, without secular artifacts around them. Placing the secular items around the Ten Commandments later didn’t change that purpose, they reasoned.

Staver said the Kentucky case could return to the Supreme Court because in the previous instance, it reached the high court at the preliminary injunction stage, without a trial or final order.

Both counties now have voted to proceed with discovery and a trial.

“The Supreme Court’s decisions on the Ten Commandments are fractured, confusing and offer very little guidance for future displays,” Staver said. “The court needs to establish a clear rule regarding the Ten Commandments and other public acknowledgements of God or religion.”

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