Deciphering The Commandment Case

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

If you want to be able to gaze up at all the "Thou Shalts" and "Thou Shalt Nots" with your neighbors, a five-justice majority said Monday, you must incorporate your religious symbol into a larger monument that incorporates secular messages as well. In other words, the court ruled, some God is constitutionally good; all God is constitutionally bad. So if I were you, I would buy stock in companies that chisel the Declaration of Independence or the Constitution into stone. Those kinds of tablets are going to be flying out of landscape places like iPods out of a WalMart now that officials know for sure they are the ticket to Commandment-ville.

There was more than the usual confusion just after the Justices released their two decisions in cases coming from Kentucky and Texas. First, a slim majority ruled that two Ten Commandment displays put up in county courthouses in Kentucky violated the establishment clause of the First Amendment because they contained no plausible secular purpose despite the best post-hoc efforts of local officials to gin up some. Then, that same majority ruled that a Ten Commandments display placed near the Texas State Capital was constitutional and did not breach the wall between the church and state because it was part of a larger display with secular components.

Contradictory results, sure. But not contradictory rulings. The reason Kentucky "lost" and Texas "won" is due to the facts of the two cases were dramatically different. In Kentucky, officials placed the Commandments in the courthouse and then tried to defend their actions by claiming that the tablets represented "the inseparable connection between the ethical conduct of [Kentucky's] legislative body and the Christian principles which permeate our society and its institutions." Oops. That's not constitutional language, or even remotely a legally-permissible rationale, and that's why the court literally ordered the tablets to be struck down (or, at the least, reconfigured in a more legally justifiable way) even after those hapless Kentucky officials tried with the help of new lawyers to remedy their errors.

In Texas, on the other hand, there was no such record that the Commandments had been placed at the State Capital for a purely religious purpose. Indeed, they had been there for decades before anyone had the idea that they might offend constitutional principles. Moreover, the tablet was part of a much larger display of similar symbols that included a replica of the Statute of Liberty, war veterans' monuments, and even a salute to the heroes of the Alamo (it being Texas and all). In that context, the Court's majority declared, whatever religious message the Ten Commandments conveyed was sufficiently neutralized by its surroundings to allow it to pass that elusive First Amendment test.

The hinge between the two cases — the reason why one turned out one way and the other the other way — was Justice Steven G. Breyer, who was the only justice who was a part of both majority opinions. In the Kentucky case, he joined in the eloquent language of Justice David H. Souter, who wrote: "We are centuries away from the St. Bartholomew's Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to stay neutral on religious belief, which is reserved for the conscience of the individual."

Justice Souter's religious "neutrality," of course, is Justice Antonin Scalia's religious "intolerance." The dissent in the Kentucky case — carried also by Chief Justice William Rehnquist, Justices Clarence Thomas and Anthony Kennedy — chided the majority for tolerating, even encouraging, a sort of constitutional hostility toward precisely the sort of religious symbolism that has been around since (and before) the country's inception. "Displays erected in silence (and under the direction of good legal advice) are permissible," Scalia wrote, "while those hung after discussion and debate are deemed unconstitutional. Reduction of the Establishment Clause to such minutiae trivializes the Clause's protection against religious establishment ..."

Scalia's worldview prevailed in the Texas case, though, thanks only to Justice Breyer. So how did Justice Breyer distinguish the two cases? First, he wrote that "no exact formula can dictate a resolution to such fact-intensive cases," and then he declared that the use of the Commandments was sufficient different to warrant different treatment under the law. In Texas, Breyer concluded, "the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. The circumstances surrounding the display's placement on the capitol grounds and its physical setting suggest that the state itself intended the latter nonreligious aspects of the tablets' message to predominate."

Moreover, Breyer noted, the "physical setting of the monument ... suggests little or nothing of the sacred ... the setting does not readily lend itself to meditation or any other religious activity. But it does provide a context of history and moral ideals." And then the Justice noted, "40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner) ... Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets' message as part of what is a broader moral and historical message ..."

The dissenters in the Texas case, which included the other four Justices who had made up the majority in the Kentucky case, said the display at the capitol transmitted a plan (and plainly unconstitutional) message that "this state endorses the divine code of the 'Judeo-Christian' God." The Commandments display in Texas, Justice John Paul Stevens wrote, "has no purported connection to God's role in the formation of Texas or the founding of our Nation; nor does it provide the reasonable observer with any basis to guess that it was erected to honor any individual or organization." You can't separate out the religious component from the tablet, he noted, no matter how much secular stuff you surround it with.

So Texas, yea; Kentucky, nay. The two rulings do not create a bright-line test that future litigants and judges will have to guide them through the thicket of First Amendment law. But they do offer sound hints of the boundaries beyond which these sorts of religious forays may not go. You can't put the Commandments on public property like former Alabama Supreme Court Chief Justice Roy Moore tried to do a few years ago because he blatantly and bluntly refused to mix his religious message with a secular one. But you can put the Ten Commandments up on public property the way you could even before these rulings put up a nativity scene. And if you put the Ten Commandments up for a religious purpose the first time around don't both trying to pretend you didn't when the litigation starts — it won't help.

The more dilute the religious message, in other words, the more likely it is to be accepted. That's not a compromise likely to make partisans on either side very happy. But it is a compromise they'll all have to live with for the foreseeable future. The court today in difficult circumstances identified reasonable distinctions to generate reasonably supportable conclusions. And that's not a bad day's work.

By Andrew Cohen