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This morning's breaking news e-mail from CNN illustrates the confusion surrounding the posting of the Ten Commandments on public property. "Following ruling barring Ten Commandments displays in courthouses, Supreme Court rules such displays are allowed at state capitols." The mistake is being repeated elsewhere, too. One would think that the Court took up the two cases—one from Texas, the other from Kentucky—in order to provide some clarity. If CNN and a host of other media outlets are any indication, the Court did anything but.

A lower court rejected that display, and the county tried again. "The new posting, entitled "The Foundations of American Law and Government Display," consists of nine framed documents of equal size. One sets out the Commandments explicitly identified as the "King James Version," quotes them at greater length, and explains that they have profoundly influenced the formation of Western legal thought and this nation."

But the lower court held, and the Supreme Court upheld, that the monument was religious rather than secular. "The counties' asserted educational goals crumbled upon an examination of this litigation's history. Affirming, the Sixth Circuit stressed that, under Stone [v. Graham], displaying the Commandments bespeaks a religious object unless they are integrated with a secular message. The Court saw no integration here because of a lack of a demonstrated analytical or historical connection between the Commandments and the other documents."

It's okay, when no one objects for a long time
On the other hand, the Supreme Court upheld a lower court ruling which allowed a 6-foot Commandments monument to stay on the Texas state capitol grounds. The Fraternal Order of Eagles gave the monument to the state, which decided to place it on the capitol grounds alongside 21 historical markers and 17 monuments.

"From at least 1789, there has been an unbroken history of official acknowledgment by all three branches of government of religion's role in American life," the court ruled. "Texas' display of the Commandments on government property is typical of such acknowledgments."

Justice Stephen Breyer wrote in a concurring opinion, "Despite the Commandments' religious message, an inquiry into the context in which the text of the Commandments is used demonstrates that the Commandments also convey a secular moral message about proper standards of social conduct and a message about the historic relation between those standards and the law. … The determinative factor here, however, is that 40 years passed in which the monument's presence, legally speaking, went unchallenged."

Say what?
So, it seems the Court is saying nothing about whether a Ten Commandments monument is set up in a courthouse or capitol grounds. Rather, it sounds like the Court is saying Ten Commandments monuments are okay if no one interprets the government's motivation as being religious, and if the monument has been around for a long time without people objecting.

Granted, the Kentucky counties handled the legal challenge badly. If their intent was to educate citizens as to "Kentucky's precedent legal code," adding other, smaller religious references was not likely to achieve that goal. Still, after the counties decided to amend the displays again to include nine displays of equal size, only one of which included anything religious, is it fair to conclude the display is religious simply because the governments that erected it may have had non-secular motives? The "litigation's history" is enough to determine that to a casual observer the display would appear to be promoting religion? Simply because, 40 years ago, no one challenged the Texas monument, and we therefore have no record of the state's motives, that monument is constitutional?

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June (Web-only) 2005, Vol. 49