BREAKING NEWS: The U.S. Supreme Court ruled that Ten Commandment displays are not permissible in courthouses.
Well, that’s what the headlines are screaming at the moment. The devil, as they say, is in the details. For example, is the Decalogue permissible if it is part of a larger display about the origins of law?
UPDATE No. 1: Decision was 5-4, with O’Connor being the swing vote. Watch the religious right jump all over her in the next few days.
UPDATE No. 2: Yes, according to CNN‘s early report, there is “wiggle room”—i.e., if the Ten Commandment display is part of a larger display honoring the nation’s legal history, that would not violate the Constitution.
But the issue in the case before SCOTUS was a Kentucky court which originally displayed framed copies of the Ten Commandments, and only those copies. (The Kentucky court later placed other historical documents next to the Ten Commandments in order to “dilute” the religious purpose behind the display, but the SCOTUS majority was not fooled, calling it a “sham").
UPDATE No. 3: But in a “companian case”, SCOTUS apparently ruled that the Ten Commandments are permissible at state capitals. I’m not sure what the exact difference in rationale is—it’s probably a matter of degree and location of the specific displays, rather than some legal distinction. Again, the devil is in the as-yet-unknown details. I’ll continue below the fold if there is more to say…
UPDATE No. 4: Both cases were 5-4. Interestingly, it was Breyer, not O’Connor who “flipped”—saying that the Kentucky court display was unconstitutional, but the Texas state capital outdoor display was permissible. From my quick read of his opinion in the Texas case, the difference turns on a factual assessment, rather than legal rationale. Breyer thought that the Texas display was “borderline”, but ultimately decided that the Ten Commandments display in Texas was not a religious endorsement by the State, but a secular message.
UPDATE No. 5: For my money, Justice O’Connor has the quote of the opinion:
It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment. [Cite omitted] Nor can we accept the theory that Americans who do not accept the Commandments’ validity are outside First Amendment protections. There is no list of approved and disapproved beliefs appended to the First Amendment—and the Amendment’s broad terms ("free exercise”, “establishment”, “religion") do not admit of a cramped reading. It is true that the Framers lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of religions for which this Nation would eventually provide a home. They surely could not have predicted new religions, some of them born in this country. But they did know that line-drawing between religions is an enterprise that, once begun, has no logical stopping point.
Interestingly, Scalia’s dissent suggests a “logical stopping point”—monotheism. In other words, monotheistic religions are protected by the First Amendment; others are not, in Scalia’s view. That’s certainly one plausible place to draw the line, I must admit. The problem is, I can’t find that line drawn anywhere in the First Amendment itself. That’s just Scalia being a judicial activist, rewriting the First Amendment to suit his views.
SUMMARY: It doesn’t look like the Court moved any on the issue of Ten Commandments. There were no new “tests” employed by the Court, and no shift in the law. Both these cases were pretty close to the line as to what is permissible and impermissible. It simply was that the Kentucky display fell on one side of the line, and the Texas display did not.