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Predictably, conservative political groups applauded the Texas ruling, decried the Kentucky one, and expressed befuddlement over the discrepancy. "This ruling by the Supreme Court is not only denigrating to our culture but it undermines the very laws we already have in place. Forbidding the Ten Commandments opens the door to hostility toward religion, which is contrary to the free exercise clause of the First Amendment," said Family Research Council's Tony Perkins in response to the Kentucky ruling.

Responding to the Texas ruling, he said, "There is no other decision that would make sense given our Constitutional history. Of course, we do not agree with the Court's decision on the Kentucky case but we welcome the court's decision to uphold the right to display the Ten Commandments on public property in Texas … The decisions today solve nothing. Current Ten Commandment display cases, such as the one in Maryland, will now proceed as this Court picks and chooses which displays offend them and which they deem worthy." James Dobson also lamented the "mixed message" the court sent.

"How the majority tries to reconcile these two rulings and the ruling in the Kentucky courthouse case with its prior rulings upholding religious displays on public property is no doubt a stretch beyond reason," said Jan LaRue, Concerned Women for America's chief counsel. "Posting [the Ten Commandments] on public property as part of a historical display is a legitimate secular purpose. The Commandments are an important part of our laws and history."

Interestingly, both groups argue for the display of the Ten Commandments for historical reasons. And by that argument, the Texas ruling makes sense. In the context of 21 historical markers and 17 monuments, the monument means little. The Kentucky courthouses on the other hand, by their silly behavior when they tried to make the display historical by adding other religious references, demonstrated their religious motivations.

So, why do conservative groups continue to argue that the Ten Commandments should be displayed for solely historical reasons, then lament when the court interprets accordingly? As CT editorialized regarding "under God" the Pledge of Allegiance, more important than maintaining the phrase is the reason for it: "recognizing that our nation is 'under God' makes our patriotism possible."

Scalia lays out the framework
In Justice Antonin Scalia's dissent, conservative groups have a pretty decent argument laid out for them, which shows that the historical argument is unneeded.

In Scalia's dissent to the Kentucky ruling, he first lays out the myriad ways in which the Establishment Clause is not interpreted to mean that government cannot favor religion. The founders, he illustrates, did not interpret it that way, and in many cases today, it is not so interpreted. "Presidents continue to conclude the presidential oath with the words 'so help me God.' Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer 'God save the United States and this Honorable Court.'"

Scalia continues, "With all of this reality (and much more) staring it in the face, how can the Court possibly assert that 'the First Amendment mandates governmental neutrality between … religion and nonreligion,' and that '[m]anifesting a purpose to favor … adherence to religion generally,' is unconstitutional? Who says so? Surely not the words of the Constitution. "

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June (Web-only) 2005, Vol. 49