Academic journal article The William and Mary Bill of Rights Journal

Ten Commandments, Nine Judges, and Five Versions of One Amendment - the First. ("Now What?")

Academic journal article The William and Mary Bill of Rights Journal

Ten Commandments, Nine Judges, and Five Versions of One Amendment - the First. ("Now What?")

Article excerpt


When the annual Spring Symposium of the Bill of Rights Institute at the MarshallWythe School of Law took up the two Ten Commandments cases then on the docket of the Supreme Court, I ventured a forecast of the outcomes and even of the manner in which the Court would divide. My forecast was that the 'Ten Commandments"1 displays installed with a hastily arranged cluster of accompanying framed documents on the interior courthouse walls in two Kentucky counties by recent orders of county executives would be disallowed, even as the federal district court itself had previously held.2 I also suggested that the outcome in this case would turn on a divided vote in the Supreme Court, 5-4, with Justice O'Connor - in effect - deciding the case by her single vote.

My forecast in respect to the case from Texas was that the State's maintenance of an imposing Ten Commandments granite monument on the Capitol grounds in Austin would not be regarded in the same way.3 A gift from a private organization widely promoting such monuments in public places, the monument had been accepted and installed on the Capitol grounds four decades earlier in 1961. It was both larger in size and somewhat more strategically placed - alongside a sidewalk pathway from the Capitol building to the state supreme court building - than any of the sixteen other monuments and twenty-one historical markers. Nevertheless, I predicted that the Court would affirm the federal district court' s decision rejecting a citizen's suit seeking its removal,4 and it would do so in still another closely divided vote. The vote would be either 5-4 or 6-3. The one- vote variance in this second hedged forecast5 turned only on my uncertainty of how Justice O'Connor would vote in this case from Texas, it being reasonably clear to me, on the other hand, as to how the other eight justices most likely would divide.

As matters turned out, on June 27, 2005, both forecasts were substantially, albeit not exactly, proved correct. Thus, in McCreary County v. American Civil Liberties Union of Kentucky,6 pursuant to an opinion for the Court by Justice Souter,7 the studied efforts of local Kentucky officials to promote the status and sectarian commands of a jealous Judeo-Christian god8 in composing the indoctrinative decor of the county's courthouses were brought up short.9 Oppositely, however, in Van Orden v. Perry, announced on the same day, in a very different opinion10 issued by Chief Justice Rehnquist,1! the Austin Capitol grounds monolith was left to stand intact (even as it doubtless does today) so to declare in letters etched large into its granite face its bold assertion of intimidating authority ("IAM the LORD thy GOD"), swiftly followed by laying down as its first demand (i.e., "commandment") that "Thou shalt have no other gods before mer And having presumed to settle both of those questions, the inscribed monolith proceeds canonically down through its remaining peremptory list of God-decreed "dos"12 and God-decreed "don'ts."13

As I say, however, neither of the outcomes respectively in McCreary and in Van Orden came as any surprise. Nor, to be sure, was there anything particularly impressive in respect to my facile confidence in presuming to predict not merely the outcome in each case, but even how the Court would divide. Indeed, it is merely fair to say that the most casual student of the doctrinal schisms14 that have gradually shaped up within the Supreme Court itself over the past twenty years of Establishment and Free Exercise Clause cases, beginning even before the elevation of Justice Rehnquist to the post of Chief Justice,15 would have wagered the outcomes and the votes of the several justices in these cases in very much the same fashion as did I.

Rather, if there were any surprise - and there was some - it was to be found principally in the decision by Justice O'Connor in the Texas case not to enlist on her own last day of service on the Supreme Court with Chief Justice Rehnquist, as she might reasonably have been expected to do. …

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