In the shadow of a Ten Commandments display that sits above its own courtroom, the Supreme Court on Monday ruled 5-4 that Ten Commandments displays violate the doctrine of separation of Church and State. In a separate ruling, the Court upheld the constitutionality of displaying the Ten Commandments on government land.
In the case involving Kentucky courthouse exhibits, the court said it was taking the position that issues of Ten Commandments displays in courthouses should be resolved on a case-by-case basis. In both the Kentucky decision and the other decision, also 5-4, involving the positioning of a 6-foot granite monument of the Ten Commandments on the grounds of the Texas Capitol, Justice Sandra Day O'Connor was the swing vote.
Justice Antonin Scalia released a stinging dissent in the courthouse case, declaring, "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle."
The majority decision in the Kentucky case argued that some displays inside courthouses would be permissible if they're portrayed neutrally in order to honor the nation's legal history. But Scalia countered that such determinations often boil down to the Court’s “personal preferences.”
“Today's opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote, ante, at 11, n.10, the Court acknowledges that the Establishment Clause doctrine it purports to be applying lacks the comfort of categorical absolutes. What the Court means by this euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not. The footnote goes on to say that [i]n special instances we have found good reason to dispense with the principle, but [n]o such reasons present themselves here. Ibid. It does not identify all of those special instances, much less identify the good reason for their existence.”
In contrast, a 6-foot-granite monument on the grounds of the Texas Capitol -- one of 17 historical displays on the 22-acre lot -- was determined to be a legitimate tribute to the nation's legal and religious history. "Of course, the Ten Commandments are religious -- they were so viewed at their inception and so remain. The monument therefore has religious significance," Chief Justice William H. Rehnquist wrote for the majority in the Texas case. "Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause," he said.
Rehnquist was joined in his opinion by Scalia, and justices Anthony Kennedy and Clarence Thomas. Breyer filed a separate opinion concurring in the result.