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Everyone knows the Supreme Court ruled that one kind of Ten Commandments display on government property is unconstitutional, but that another kind is acceptable. But no one—including the Supreme Court itself—seems to be able to explain why.

"Commandments may be displayed in state capitols but not in courthouses," said a National Council of Churches press release—wrongly. But cnn initially made the same mistake.

So guess which display won approval: Was it the six-foot granite monolith inscribed with a Christian Chi-Rho symbol and "I AM the LORD thy God" in extra-large letters? Or was it the framed paper copy of Exodus 20:3-17 from the King James Version displayed along with the Magna Carta, the Declaration of Independence, the Bill of Rights, and other items—along with the explanation that "The Ten Commandments have profoundly influenced the formation of Western legal thought"?

That the Supreme Court found the first display (in Texas) acceptable and the second (in Kentucky) unacceptable perfectly illustrates the near-total lack of consistency in church-state rules.

In fact, right now there are no rules. "Establishment Clause doctrine lacks the comfort of categorical absolutes," the five-justice majority ruled in the Kentucky case (McCreary County v. ACLU). "Tradeoffs are inevitable, and an elegant interpretive rule to draw the line in all the multifarious situations is not [to] be had."

It sounds "enlightened" and nuanced, but the decisions don't even agree on the basics. In McCreary, the Court ruled, "the government may not favor … religion over irreligion." In the Texas case (Van Orden v. Perry) the same day, the Court ruled, "we … do not adhere to the principle that the Establishment Clause bars any and all governmental preference for religion over irreligion."

Eight of the nine justices held consistent positions between the two cases. It was Justice Stephen Breyer who switched sides, and while he didn't write the majority opinion in Van Orden, his concurring opinion will be what is called "controlling." One of the main "underlying purposes" of the First Amendment's rule against establishing religion, he wrote, is "to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike."

There was no real divisiveness in Texas, Breyer claimed. After all, he said, no one complained about the monument for 40 years. But removing Commandments displays across the country could have caused divisions, he said, so they should stay.

The Kentucky display should go, he said, because "the short (and stormy) history of the courthouse Commandments' displays demonstrates the substantially religious objectives of those who mounted them. … In today's world, in a nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that [Texas's] longstanding, pre-existing monument has not."

The Court stands on shifting sands. But at least for today the Commandments decisions have some practical applications. The first, sadly, is to make noise. Complain about whatever offends you. Cause a ruckus. Under Breyer's rule, silence equals consent, so file those complaints quickly! Essentially, the Supreme Court has said that only it is wise enough to navigate each wave of the murky church-state seas. There are no real rules to apply, so no more amicable handling of disagreements with your local public school principal or city council. You used to be able to cite court precedent. Now you'll have to sue. This approach is neither Christian nor neighborly, but it's essentially what the Supreme Court has told Americans to do.

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August 2005, Vol. 49, No. 8