Ten Commandments: Don’t Mention Jesus

By Lyle Denniston
on Jun 27, 2005 at 2:50 pm

The Supreme Court has not ordered the immediate removal of all Ten Commandments displays from government buildings, or from the lawns outside those buildings. In fact, its ruling Monday in two cases could serve as an implied endorsement of such displays – in the right context.

But one aspect of this overheated controversy will not be sorted out, even in a preliminary way, until Tuesday morning. At that time, the Court is expected to provide some indication of its current view of Ten Commandments displays inside public school buildings, or on the grounds outside. That, from the Court’s perspective, may be a very different venue, constitutionally speaking, for religious monuments. Three other pending appeals deal with displays in or around schools – a setting that the Court did not confront in Monday’s rulings. The Court’s only prior ruling on the Commandments, the 1980 decision in Stone v. Graham, barred such displays on public school classroom walls.

In some ways, the outcome Monday for other government sites resembles the Court’s approach to the Christian nativity scene on government property: the religious nature of the manger scene can be neutralized, and thus made constitutionally accepted, if it is surrounded by other objects that are non-religious in character. (See the Pawtucket, R.I.,case, Lynch v. Donnelly, in 1984).

If government officials are careful not to say publicly that the reason they are displaying the Ten Commandments is to promote religion, and not to say publicly that they are commemorating Jesus as “the Prince of Ethics,” and if they put up this sacred text amid a “display on law or history,” they probably can satisfy the two new decisions.

Out of the eight separate opinions that the Court used to decide the Kentucky courthouse and the Texas state capital grounds cases, two appear to be controlling. One is Justice David H. Souter’s opinion in the Kentucky case, laying out in very specific detail why county officials crossed the Establishment Clause line by the way they displayed the Commandments inside county courthouses. The other is the separate opinion by Justice Stephen G. Breyer in the Texas case, speaking only for himself but providing the crucial fifth vote for the outcome, thus making his the controlling opinion in that dispute.

Souter stressed that the Court was not holding that “a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history. We do not forget, and in this litigation have frequently been reminded, that our own courtroom frieze was deliberately designed in the exercise of governmental authority so as to include the figure of Moses holding tablets exhibiting a portion of the Hebrew text of the later, secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating neutrality in religion.”

What decided the Kentucky case against the county displays, Souter made clear, was the clear religious objective the officials had in mind in putting up the Commandments on courthouse walls, and leaving them there, only later surrounding them with historical documents in a failed attempt to neutralize their original purpose. That was not neutrality, Souter emphasized. It was, rather, an attempt to find “any way to keep a religious document on the walls of courthouses.”

That probably will mean some other Commandments displays around the country will not be able to pass muster. But it by no means suggests that no existing display, and no future display, can survive constitutional scrutiny. Context, in short, will mean everything.

Breyer’s separate – and decisive – opinion in the Texas statehouse grounds case uses a somewhat different, though not contradictory, approach than the one Souter employed. What seemed to make the most difference to Breyer was that the Commandments monument had stood “apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.”

Turning to the purpose factor that was so decisive in the Kentucky cases, Breyer said that Texas officials put up the lawn display of monuments primarily to emphasize non-religious aspects. And, like Souter, Breyer put some emphasis on the physical setting – a parklike venue, with 17 monuments and 21 historical markers, all illustrating the values of those who settled Texas and have lived there since. “The setting does not readily lend itself to meditation or another religious activity,” Breyer concluded.

Along the way toward resolving these disputes, the Court majority chose not to abandon the basis Establishment Clause formula laid down in the 1971 case of Lemon v. Kurtzmann