Justices Limit Public Display of Religion

The Supreme Court, declaring that public officials may not seek to advance or promote religion, on Monday struck down the posting of the Ten Commandments on the walls of two Kentucky courthouses.

But the court did not set a clear rule for deciding when the government had gone too far in permitting religious displays, and the decision probably wasn’t the last word.

In its 5-4 ruling, the court said the commandments were “a sacred text” that carried an “unmistakably religious” message. For that reason, their prominent display in a government building violates the Constitution’s ban on laws “respecting an establishment of religion.”

The court’s opinion, coming on the final day of its term, narrowly holds the line on the separation of church and state. The government and its officials must be neutral toward religion, the court majority said, and may neither promote nor discourage it.

However, in a separate 5-4 ruling, the justices upheld as constitutional a granite monument depicting the Ten Commandments that sits among 17 other monuments and 21 plaques on the grounds of the Texas Capitol in Austin.

The pair of rulings suggests that the Ten Commandments may be displayed inconspicuously among other documents or monuments, but cannot be made the focus of attention in a courthouse or government building.

Justice Stephen G. Breyer, who voted to strike down the display in the Kentucky courthouse, cast a fifth vote to uphold the Texas monument. He called it a “borderline case,” but stressed that the 44-year-old granite monument did not look to be a religious display. It sits among monuments to war veterans, Boy Scouts, Texas’ early pioneer women and others.

The Fraternal Order of Eagles erected the Ten Commandments monument in 1961 as part of its campaign to combat juvenile delinquency, Breyer noted. Visitors to the Capitol grounds might not even notice the monument, he said.

“The Texas display falls on the permissible side of the constitutional line,” Breyer concluded. “This display has stood uncontested for nearly two generations.... As a practical matter [it] is unlikely to prove divisive.”

In announcing the Kentucky ruling, Justice David H. Souter noted that in the facade above the justices’ courtroom, there were stone carvings of 18 ancient lawgivers. One of them is Moses shown holding a tablet. This partial depiction of the Ten Commandments is not objectionable, Souter said, because no reasonable observer would see it as a promotion of religion.

But it is a different matter, he said, when officials prominently display the biblical commandments so that all can see a religious message.

“Context matters,” Souter said.

That distinction pleased advocates of church-state separation.

“Everyone interested in religious freedom should want the government to stay neutral when it comes to religion,” said Ralph Neas, president of People for the American Way.

But leaders of several Christian groups attacked the Kentucky decision. Roberta Combs, president of the Christian Coalition of America, called it “tyrannical” and said it “showed once again the nation’s top court is completely out of step with the American people.”

The Ten Commandments cases came before the court during a time of renewed dispute over the role of religion in public life.

President Bush often has spoken of the importance of religion, and he has promoted a faith-based initiative to direct taxpayer money to church-sponsored groups. Administration lawyers endorsed the displays of the Ten Commandments in the Kentucky and Texas cases, arguing that the government should be allowed to give “official acknowledgment” to religion.

The justices in the Kentucky case majority seemed just as determined to hold the line.

“The divisiveness of religion in current public life is inescapable,” Souter said. “This is no time to deny the prudence of understanding the establishment clause [of the 1st Amendment] to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual.”

He and Justice Sandra Day O’Connor said they saw a danger in allowing the government to take sides on religious matters.

“Allowing the government to be a potential mouthpiece for competing religious ideas risks the sort of division” that the Constitution sought to avoid, O’Connor said. “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

Justices John Paul Stevens, Ruth Bader Ginsburg and Breyer joined them.

Justice Antonin Scalia responded to the Kentucky ruling with strong dissent, accusing his colleagues of ignoring religion’s role in the nation’s founding.

“The court’s oft-repeated assertion that the government cannot favor religious practice is false,” he began. Unlike France, which was founded as a secular state, the United States was founded by public men who spoke often of their devotion to God, he said.

George Washington added the words “so help me God” to the oath of office as president, Scalia said. The president and Congress issue Thanksgiving Proclamations, and the high court decided to open its sessions with the prayer, “God save the United States and this honorable court,” he added.

“How can this court possibly assert that the ‘1st Amendment mandates government neutrality between religion and non-religion’?

About 98% of America’s religious communities -- Christians, Jews and Muslims -- believe in one God, Scalia said. Since the “overwhelming majority” of Americans believe in a single God, public officials should be permitted to acknowledge this belief through public statements or displays such as the Ten Commandments, he said.

“There is nothing unconstitutional,” he added, “in a state’s favoring religion generally, honoring God through public prayer and acknowledgment, or ... venerating the Ten Commandments.”

Chief Justice William H. Rehnquist and Justices Clarence Thomas and Anthony M. Kennedy joined Scalia’s dissent.

In the past, the court has struggled to decide disputes involving religious displays. Often, the outcome turned on trivial details.

For example, the court in 1984 upheld a city’s display of a manger scene during the Christmas season, but only because it included reindeer and colored lights. Several years later, it struck down a more solemn depiction of Christ’s birth that sat during the Christmas season on the steps of Pittsburgh’s City Hall.

In Monday’s opinion, Souter described how Kentucky’s officials used the commandments as a way to make a religious statement. The state’s lawmakers endorsed Alabama Chief Justice Roy Moore when he was fighting to keep a Ten Commandments monument in the rotunda of the Alabama Supreme Court. The Kentucky officials also spoke of “honoring Jesus Christ, the prince of ethics.”

Kentucky once required the posting of the Ten Commandments in classrooms, but the high court struck down that law 25 years ago.

In 1999, county supervisors voted to post the commandments in several buildings. Judges in McCreary and Pulaski counties posted large, gold-framed copies of the Ten Commandments in their courthouses. They specified the Protestant King James version, the high court noted.

The judges’ action showed a “predominant religious purpose” and therefore it was unconstitutional, the court said in McCreary County vs. ACLU.

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How they voted

Justice Stephen G. Breyer was the swing vote in allowing the Ten Commandments to be displayed outside the Texas Capitol, but not inside two Kentucky courthouses.

Voting to display the Ten Commandments:

*--* Texas Kentucky Chief Justice William H. Rehnquist Yes Yes Antonin Scalia Yes Yes Anthony M. Kennedy Yes Yes Clarence Thomas Yes Yes Stephen G. Breyer Yes No John Paul Stevens No No Ruth Bader Ginsburg No No Sandra Day O’Connor No No David H. Souter No No *--*

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Monday’s other rulings

The Supreme Court met for the final time this term and:

Ruled unanimously that Internet file-sharing services can be held responsible if they encourage their customers to use software primarily to swap songs and movies illegally.

Decided 6-3 that cable companies may keep rival Internet providers from using their lines.

Ruled 5-4 that an appeals court improperly gave a Tennessee death row inmate a second chance.

Rejected appeals from two journalists who refused to reveal their sources to a prosecutor investigating the leak of a CIA officer’s identity.

Ruled 7-2 that police cannot be sued for failing to enforce restraining orders.

Agreed to clarify when evidence collected during improper police searches can be used against a criminal suspect.

Said it would consider whether federal employees can sue in federal court for alleged constitutional violations.

Sources: Supreme Court, Associated Press