But often, when the Supreme Court decides not to hear a case (called a denial of certiorari), it does so without comment. Not this time. Three conservative justices—Rehnquist, Scalia, and Thomas—publicly disagreed with the decision to pass on the case. "The monument does not express the city's preference for a particular religion or for religious belief in general," wrote Rehnquist for the three dissenters (PDF | HTML). "It simply reflects the Ten Commandments' role in the development of our legal system."

Their dissent prompted Justice John Paul Stevens to defend the denial (but not until after he grumbled that "dissents from the denial of certiorari should be disfavored"). Stevens noted that the monument starts off in very large type: "THE TEN COMMANDMENTS—I AM THE LORD THY GOD." The actual commandments are in smaller type. "The graphic emphasis placed on those first lines is rather hard to square with the proposition that the monument expresses no particular religious preference," Stevens wrote, "particularly when considered in conjunction with those facts that the dissent does acknowledge—namely, that the monument also depicts two Stars of David and a symbol composed of the Greek letters Chi and Rho superimposed on each other that represent Christ."

Attorney Jay Sekulow of the American Center for Law and Justice (ACLJ), which represented the city of Elkhart, had initially ...