June 27, 2005

The first Ten Commandments decision.

CNN reports:
The 5-4 decision, first of two seeking to mediate the conflict over religion's place in public life, took a case-by-case approach to this vexing issue. In the decision, the court declined to prohibit all displays in court buildings or on government property.

The justices left themselves legal wiggle room on this issue, however, saying that some displays -- like their own courtroom frieze -- would be permissible if they're portrayed neutrally in order to honor the nation's legal history.

But framed copies in two Kentucky courthouses went too far in endorsing religion, the court held.

"The touchstone for our analysis is the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion," Justice David H. Souter wrote for the majority.

"When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment clause value of official religious neutrality," he said.

UPDATE: And the second case goes the other way. It makes sense, but I can't explain why until after class, which I've got to run to.


Sloanasaurus said...

I haven't read the cases but the wires on the reasoning makes sense. It seems reasonable that someone should not be able to put up displays of the ten commandments with the intent that they be religious displays first rather than something else. This is obviously a fine line.

However, the problem with the Ten Commandments as an example of a religious display is that it is so classic that it does not really seem religious. The Ten Commandments are more of a historical document. If I saw a copy of the Ten Commandments somewhere my first reaction is not a religious one. The only people who are offended by displays of the Commandments are those who make money from being offended (such as the ACLU).

Too Many Jims said...

My guess, not having read the cases yet, is that Sloan is right about the line being drawn.

I would, however, point out that there are some (most notably the former CJ of Alabama) who are offended by displays of the ten commandments when they are part of displays including non-religious (specifcally non judeo-christian) "monuments".

Sloanasaurus said...

After seeing the second case, this appears to be a loss for the ACLU secular side. We will heve to see the details of the second case. However, the ACLU basically wants to ban relgion from all aspects of public life. They have failed in their effort. Christmas lights and decorations are safe (for the time being).

Sloanasaurus said...

What is going on with the Court. These decisions appear at odds with each other.

The Court is dysfunctional at best. We need Howard Dean on the Court to give it some clarity.

goesh said...

i guess the crosses at arlington will remain for a while

Joaquin said...

Christmas trees, lights, and decorations????

The Mojician said...

Goesh brings up an interesting point. At all of the national cemeteries the family of the interred may choose a religious symbol that is engraved, often in a circle, near the top of the stone. The most common are crosses and stars of David. I'm not sure that I have personally seen other symbols but they probably are available also.

Joaquin said...

sloanasaurus - Woops! Just saw your post about xmas lights and decorations.

Effern said...

To clarify, the headstones at Artlington themselves are not shaped like crosses.


So as to Moj's point, the engraved religious symbols do not necessarily violate any church/state statutes as they are selected voluntarily by the families, as opposed to the sole option (like it or not) of a cross-shaped headstone.

Charles said...

Why does a frame on a picture make it not okay? An unframed poster is fine? Let's get real, the Constitution and BoR is after no state establishment of religion. It doesn't say you can't show any religious documents. And it doesn't say you can. So for the last 229 years, all courts and government has been wrong to allow the displays of the US law cultural heritage? Somehow these rub the nose of who in the greatest civilization in the world... are we afraid of these other groups?

JLP said...

Don't we have much bigger problems to worry about rather than offending the 4% of people in the USA who don't believe in God?

Why do we, as a country, bend over backwards to please such a small number of people? If they are here from another country, then why don't they go back to that country where they feel comfortable?

Am I being too harsh?



DaveG said...

Easiest answer: replace ten commandments displays with a very simple Golden Rule display: do unto others as you would have others do unto you.

Seems to cover the bases quite nicely, and frankly, it's a message our legislators should pay more attention to.

goesh said...

That ain't a taco I see standing there by the Mexico Civil War monument, and that ain't a Druid's oak by Robert Kennedy's grave either, both of which the tax dole is used by the families when it comes to trimming during mowing season and cleaning off the bird poop. Some folks might surmise upon viewing RFK's cross that you have to be Catholic to have Presidential aspirations.

Sami said...


"If they are here from another country, then why don't they go back to that country where they feel comfortable?"

And where should those of us go if we are from this country? Are we supposed to find a new country if there is an issue or two that we disagree with? Personally, I don't care if the ten commandments are displayed but as an agnostic American I take a little offense to that statement (but then I am only in the small 4% group so I guess I don't matter).

JLP said...


I say take it to the people. Let the people vote as to whether or not they want to allow the Ten Commandments to be posted wherever.

Why all the sudden are people so worked up about this?



Sami said...

JLP - Okay, I can agree with that, just wasn't happy with the way you said it.

Kathleen B. said...

The government is not supposed to establish a religion, nor is it supposed to show preference for, or favor, a religion. If you really believe the displays of the 10 Commandments are historical then fine. But many people believe that the displays are meant to show a preference for Christianity. And that is the problem. In this Country, we should all be free to worship as we choose according to our consciences, and should not be made to feel that the government which rules over us supports a different religion than ours. (or indeed supports our religion - many Christians are uncomfortable with that as well.) Lots of things, if taken "to the people" would infringe on minorities. That is why we have basic protections in the Constitution that protect minorities. And I can't believe I have to point this out, but it isn't just atheists (alleged 4%) who think that displays of the 10 Commandments and other religious displays show preference for Christianity. especially in cases where the clear intent is to show preference for Christianity.

Sloanasaurus said...

Where does it say that the Government is not supposed to "have a preference for, or favor, a religion?" This is quite a different concept than "establishing" a religion.

I see government figures blabbering about how they are religious all the time. Bill Clinton never missed a chance to be seen attending church. They have Christmas trees and lights all over the capitol and White House. They have crosses strewn across Arlington Cemetery all implying that our Government recognizes that its citizens died for God and Country, not just Country.

Our government will favor Christianity for the rest of its existence. However, favoring a religion doesn't mean having an established church or outlawing another religion.

Kathleen B. said...

sadly, I am too much of a Con law neophyte, and too busy to dig up the case law, but I am pretty sure that historically "establishing a religion" has been interpreted as also "favoring or showing preference for." and to me that makes logical sense. Surely the government could so indicate a preference for a religion that it is tantamount to "establishing" a religion, and therefore eviserates the substance of the Amendment? obviously we could disagree as to how far the government would have to go to reach that point, but clearly getting hung out on the sematics of whether the government actually "established" a religion does not serve to fulfill the spirit of the Amendment.

Sloanasaurus said...

I agree with you that it could reach a point where "favoring" would be the same as "establishing." For example, if the government only allowed tax exempt status to Churches (Christian) I think that would be the kind of favoring that equals establishment even though the government is not actually penalizing or forcing citizens to attend church over another religion or non-religion.

Just offending the easily- offended, however, is not enough to justify a violation of the establishment clause.

Mary O'Neill said...

kathleen b:

I believe the Ten Commandments were introduced in the Old Testament of the Bible - long before there was such a thing as "Christianity".

Kathleen B. said...

how could there be an Old Testament of the Bible before there was Christianity?

nevertheless, your point is well-taken that the 10 commandments were not originally a "Christian" artifact. Yet, they have been so adopted, and are pretty clearly, in my opinion, meant to represent a Christian heritage, and current Christianity that identifies with the 10 commandments much more so than Judaism.

Kathleen B. said...

Just offending the easily- offended, however, is not enough to justify a violation of the establishment clause.

fair enough. And do you count within that group (of "easily-offended") those religous Americans who are offended at the idea of removing religious symbols from government buildings?

Sloanasaurus said...

No, I wouldn't classify that group as being offended.

However, I get your point. I would say that groups opposed to the teaching of sex education of any kind in schools fall into the easily offended class.

Tim said...

Reading Stevens' dissent, I was immediately struck by his decision to quote, at the beginning of his opinion, the Ten Commandments as written on the monolith his opinion would have removed. Was he just being cute? Something like, "I'm allowed to display the 10 Commandments here, in this public and quasi-official setting, because I'm performing an analysis on the text and context that would prevent future similar displays from upsetting non-Christians."

If there is a genuine concern on the part of the dissenters, however, for those non-believers forced to walk past displays of religious texts, shouldn't that concern have compelled them to think twice about publishing lengthy excerpts of those texts on Supreme Court stationary?