Why Justice O'Connor opposed both Ten Commandments displays.

As described in the previous post, in Van Orden (the Texas Ten Commandments monument case), Justice Breyer purported to adopt the approach to the Religion Clauses that Justice O'Connor articulated in McCreary. But in Van Orden, Breyer, unlike O'Connor, approved of the Ten Commandments display. Let's look at O'Connor in today's two cases. In the monument case, she writes only briefly and says she "essentially" agrees with Justice Souter -- even though she doesn't actually join his opinion. Here's a key passage from Souter's opinion:

[A] pedestrian happening upon the monument at issue here needs no training in religious doctrine to realize that the statement of the Commandments, quoting God himself, proclaims that the will of the divine being is the source of obligation to obey the rules, including the facially secular ones. In this case, moreover, the text is presented to give particular prominence to the Commandments’ first sectarian reference, “I am the Lord thy God.” That proclamation is centered on the stone and written in slightly larger letters than the subsequent recitation. To ensure that the religious nature of the monument is clear to even the most casual passerby, the word “Lord” appears in all capital letters (as does the word “am”), so that the most eye-catching segment of the quotation is the declaration “I AM the LORD thy God.” What follows, of course, are the rules against other gods, graven images, vain swearing, and Sabbath breaking. And the full text of the fifth Commandment puts forward filial respect as a condition of long life in the land “which the Lord they God giveth thee.” These “[w]ords … make [the] … religious meaning unmistakably clear.”

To drive the religious point home, and identify the message as religious to any viewer who failed to read the text, the engraved quotation is framed by religious symbols: two tablets with what appears to be ancient script on them, two Stars of David, and the superimposed Greek letters Chi and Rho as the familiar monogram of Christ.... It would therefore be difficult to miss the point that the government of Texas is telling everyone who sees the monument to live up to a moral code because God requires it, with both code and conception of God being rightly understood as the inheritances specifically of Jews and Christians.

And here is O'Connor's concurring opinion that determined the outcome in McCreary, the case that involved a framed copy of the text of the Ten Commandments, displayed on a courthouse wall. It's nicely short. Here's a key passage:

The First Amendment expresses our Nation’s fundamental commitment to religious liberty by means of two provisions–one protecting the free exercise of religion, the other barring establishment of religion. They were written by the descendents of people who had come to this land precisely so that they could practice their religion freely. Together with the other First Amendment guarantees–of free speech, a free press, and the rights to assemble and petition–the Religion Clauses were designed to safeguard the freedom of conscience and belief that those immigrants had sought. They embody an idea that was once considered radical: Free people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.

Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat....

Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation. The purpose behind the counties’ display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer.

We need to consult the main opinion in McCreary to see the particular details that led her to this conclusion, but we can see that the main concern is the purpose in setting up the display. The majority opinion -- written by Justice Souter -- basically adopted the district court's view that the state had a religious purpose when it posted the Ten Commandments in two courthouses. The additional historical documents that were put up alongside the original posting did not transform the display into a history lesson. They were simply a sham, meant to avoid the original problem posed by the posting the Ten Commandments in isolation.

So now we've looked at the two most interesting Justices in the two cases. The rest of the Justices did pretty much what we expected them to do. I'll have a little more to say about them later.