If you hadn't completely given up on the Supreme Court...

... the confusing/confused rulings about displaying Ten Commandments might push you over the edge. An AP story states:

The Supreme Court ruled Monday that displaying the Ten Commandments on government property is constitutionally permissible in some cases but not in others. A pair of 5-4 decisions left future disputes on the contentious church-state issue to be settled case-by-case.

"The court has found no single mechanical formula that can accurately draw the constitutional line in every case," wrote Justice Stephen G. Breyer. Breyer was the only justice to vote with the majority in both cases: One that struck down Ten Commandments displays inside two Kentucky courthouses and a second that allowed a 6-foot granite monument to remain on the grounds of the Texas Capitol.

The court said the key to whether a display is constitutional hinges on whether there is a religious purpose behind it. But the justices acknowledged that question would often be controversial. "The divisiveness of religion in current public life is inescapable," wrote Justice David H. Souter.

He said it was important to understand the Constitution's Establishment Clause, which requires the government to stay neutral on religious belief. Questions of such belief, he said are "reserved for the conscience of the individual."

The Constitution's Establishment Clause is not altogether complicated, even if the multitude of endless arguments about how it should-can-must-will be-won't be interpreted are. It states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Now, I don't have a law degree nor am I a Constitutional scholar, but I fail to see how having a copy of the Ten Commandments displayed in a public place establishes or prohibits any religion. Note the key word: "establish." Over at The Reform Club, S.T. Karnick makes this very important point:

In his dissent in the Texas decision, Justice John Paul Stevens concurred with Rehnquist's assessment of the religious content of the display, noting that the monument proclaims 'I AM the LORD thy God,' in large letters. Stevens interprets the meaning of the display as follows: "The sole function of the monument on the grounds of Texas' State Capitol is to display the full text of one version of the Ten Commandments." However, Stevens parts company with the Rehnquist majority by concluding, "The message transmitted by Texas' chosen display is quite plain: This state endorses the divine code of the Judeo-Christian God."

I agree with Stevens in that assessment: the displays do suggest that the government of the State of Texas accepts the Ten Commandments as a divinely inspired truth. Really, that much should be fairly obvious. Such displays do also include historical and perhaps artistic aspects, but the religious on is surely paramount. In addition, I would suggest that these displays often express a more general public commitment to the God of the Bible.

Hence, I would agree that the Court is correct to hold that some such displays do constitute an endorsement of religion, and specifically of the Judeo-Christian religious tradition.

Where the majority of the Court is wrong, in the view of many constitutional scholars and a large minority on the Court itself (and this author), is in ruling that endorsement of religion in general, or even specifically of Christianity, is unconstitutional. The Establishment Clause of the First Amendment was clearly intended solely to prevent the establishment of an official national church as was the custom in most European nations. The idea behind it was to keep religion strong in the nation by allowing and indeed encouraging free play among religious groups. Consequently, the modern notion that the Establishment Clause requires government to be neutral between religion and irreligion goes against the letter, intent, and spirit of the clause. In fact, it turns the clause on its head and uses it to push religion out of the public square, the very opposite of its intended purpose.

Exactly right. And that was never the intention of the fathers of the American republic. As Russell Kirk notes in his excellent study, The Roots of the American Order (Regnery Gateway, 1991), the two factions (defenders of the established state churches in New England and those who were for complete toleration/foes of any national religious establishment) were satisfied with the "establishment clause" because "this clause of the First Amendment was looked upon as a safeguard of religious convictions, not as an act of disavowing religious principles" (p 436). The sense of the Amendment, Kirk also observes, "was not an arid secularism, hostile toward the religious consecration of the civil social order" and "does not set up those two, State and Church, in fortified camps, at feud" (p. 439). Obviously, the days of arid secularism and feuding are upon us. Kirk's concluding words of warning (echoing the comments of many of the American founders) are sobering:

The Constitution was and is purely an instrument for practical government—not a philosophical disquisition. Yet practical government in the United States, and in every other nation, is possible only because most people in that nation accept the existence of some moral order, by which they govern their conduct—the order of the soul.

For more comments on this topic:

• Charlotte Allen of the Independent Women's Forum: "You're Confused About the Ten Commandments Rulings? So Am I"
• George Will: "Hairsplitting at the Court"
• Bill Murchison: "The Supreme Court, God and us"
• Edward Whelan: "Another Classic Scalia Dissent" (with a link to Justice Scalia's dissent in the Kentucky case)

Comments

[Paul H]

Quote: "Now, I don't have a law degree nor am I a Constitutional scholar, but I fail to see how having a copy of the Ten Commandments displayed in a public place establishes or prohibits any religion."

Not only that, but remember that the Constitution says "Congress shall make no law...." I don't see how displaying the Ten Commandments in front of a state courthouse has anything to do with Congress.

[Jackson Eskew, Esq.]

Paul H, the 14th Amendment - which applies by its terms to the states - has been found to incorporate most of the Bill of Rights, including the First Amendment. Thus, the First Amendment now reads, in effect, "Congress (nor the states) shall make no law...."

I encourage everyone to read Scalia's devastating dissent in the McCreary case. It can be found here:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=03-1693#dissent1

[DaveB]

The Court previously held that the 14th amendment due process clause "incorporated" the bill of rights such that the prohibitions were equally applicable to the states. For example, the court held that the constiutional restraints on search and seizure were as applicable to the State of Ohio as to the federal government.

[Patrick Coulton]

Perhaps the time has come for a new amendment which
will takes these questions out of the hands
of incompetent lawyers.

[Patrick Coulton]

sorry I dont know how I got so many posts.

[Carl Olson]

Patrick: Perhaps it was a message in need of repeating. ;-) I'll take care of the extras...

[William Bloomfield]

"Paul H, the 14th Amendment - which applies by its terms to the states - has been found to incorporate most of the Bill of Rights, including the First Amendment. Thus, the First Amendment now reads, in effect, "Congress (nor the states) shall make no law...."

Justice Thomas' concurrence in Van Orden (that's the case which upheld the Texas monument) argues that the First Amendment should not be incorporated against the states. I agree and hope Thomas's view one day prevails.

[Marc Koechig]

When you are unable properly to legislate you always will have the Supreme Court to legislate for you.