Deciphering The Commandment Case

Andrew Cohen On Two Cases, Ten Commandments And One Rule

(CBS)  "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.