Rulings Not Etched in Stone: The Recent Supreme Court Decisions on the Legality of Placing the Ten Commandments in Public Places-One Allowing Their Exhibition, and One Disallowing Them-Illustrate the Twisted Logic of the Anti-Religious Justices

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Moses would not have been pleased. The Supreme Court seemed to be halting between two opinions when, on June 27, the justices narrowly upheld a Texas Ten Commandments display while striking down another display in Kentucky. Each was a 5-4 decision. Chief Justice Rehnquist and Justices Scalia, Thomas, and Kennedy voted to uphold both displays, while Justices Souter, Stevens, Ginsburg, and O'Connor voted to strike down both. Justice Breyer cast the deciding vote for the Texas display and against the Kentucky display.

The cases were slightly different. The Texas monument had been placed on the state capitol grounds by the Fraternal Order of Eagles in 1961 and stood amid at least 16 other monuments and 21 other markers commemorating people, ideals, and events that compose Texan identity. The Kentucky display was installed in 1999 in a ceremony with religious overtones, and stood by itself until challenged. After the challenge, officials surrounded the Ten Commandments with framed copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the Star Spangled Banner, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice. But in the view of five Supreme Court justices, this addition was too little and too late to purge the display of the religious taint they deem unconstitutional. The Court concluded that the Ten Commandments are a religious document and that the county officials established the display for a religious purpose, so the display violates their interpretation of the Establishment Clause of the First Amendment.

The Establishment Clause says that "Congress shall make no law respecting an establishment of religion." The clear intent of the Founders in creating the Establishment Clause was this--first, to prevent a federal establishment of religion, and second, to stop the federal government from interfering in the expression of religion in states--either by citizens of the state, by local communities, or by state governments. In fact, the intent of the entire Bill of Rights was to put limits on the federal government, not on state governments--that is what state constitutions were for. However, for many years now, activist courts have used a part of the Fourteenth Amendment (no state shall "deprive any person of life, liberty, or property, without due process of law") as "justification" for applying the Establishment Clause and other parts of the Bill of Rights--as interpreted by the Supreme Court--to the states, thereby giving the federal judiciary the power to control state laws. (The Fourteenth Amendment was originally adopted to end the effects of slavery in the South.)

The Ten Commandments cases may seem like a split decision, with one Ten Commandments display approved and the other disapproved. But the Kentucky case (McCreary County v. ACLU) may carry greater weight, for the Kentucky decision was a "majority ruling," while the Texas decision (Van Orden v. Perry) was only a "plurality ruling" since Justice Breyer concurred specially but did not join the Rehnquist opinion. Plurality opinions have precedential value but are not as binding as majority opinions.

In supporting the Kentucky opinion, Justice Souter utilized the Lemon test, from a 1971 case called Lemon v. Kurtzman, which analyzes Establishment Clause cases pursuant to a three-part test: (1) Does the government activity have a secular purpose? (2) Does its primary effect neither advance nor inhibit religion? (3) Does the activity foster excessive entanglement of government with religion? (A later decision combined the last two prongs of this test.) In use, this test states that if the government activity being judged under the Establishment Clause does have a secular purpose, does not advance or inhibit religion, and does not excessively entangle government with religion, the activity is legal.

Note that, at least until now, the Lemon test asked only whether there was a secular purpose. …