I was in San Francisco attending conferences when the Ten Commandments decisions were handed down. So my commentary on the matter is a little later than I would like.
First, here are links to the opinions for the
Texas case (upholding the commandments monument) and the
Kentucky case (forbidding display of the Commandments in Kentucky courthouses). I recommend reading the opinions themselves rather than relying upon what the news media or commentators or litigants or activists or I have to say about them. Many of those who have commented on the cases have, I think, missed some of the major points.
Overall, it is probably fair to say that there was more going on here than the opinions showed. There may have been concern among some members of the Court that there would be a push to roll back the First Amendment to allow the government to erect religious monuments. Something similar is already happening in connection with flag desecration, in which a proposed constitutional amendment would roll back First Amendment protection for some kinds of expression that some people don't like. And there is also currently a movement (supported by the president) to amend the Constitution to fend off rulings of "activist judges" without any showing of need. In other words, there is a political climate right now that favors amending the consititution based upon trivialities, and there may have been concern that a sweeping ruling against commandment displays would result in a trivial, and unwise, push to amend the Constitution.
So the Court's rulings have elements of a compromise: each side gets something. Long-standing monuments can probably stay up for a while, but new monuments are going to be harder to put up.
It seems pretty clear, however, that the scale generally tipped in favor of those who feel that commandment displays are not appropriate.
There are some important differences between the Kentucky case and the Texas case. Although both cases were decided by 5-4, the Kentucky case inlcuded an
"opinion of the court" and the Texas case did not. An "opinion of the court" means that a majority agreed on both the result
and the rationale. An opinion of the court is entitled to considerable legal weight.
The Texas case, by contrast, was a
plurality opinion, and there was no opinion of the court. Five justices agreed on the result, but they did
not agree on the rationale! A plurality decision is generally regarded as having far less legal weight.
In the Kentucky case, the Justices that agreed on the result and the rationale were Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer. It was Justice Breyer who "switched sides" in the Texas case, but he did not agree with the rationale urged by Justices Rehnquist, Scalia, Kennedy and Thomas.
In the Kentucky case, Justice Souter wrote the opinion of the court. The opinion reaffirms that the current state of the law is that the government is to be neutral on matters of religion. (In spite of the result in the Texas case, this is still the law.) The
Stone case is still viable, and display of Ten Commandments text is presumed to be intended to advance religion. (In spite of the result in the Texas case, this is still the law, too.) The opinion has many strong or thought-provoking points, but it comes to its conclusion with these powerful words:
Historical evidence thus supports no solid argument for changing course (whatever force the argument might have when directed at the existing precedent), whereas public discourse at the present time certainly raises no doubt about the value of the interpretative approach invoked for 60 years now. We are centuries away from the St. Bartholomew's Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual.
Justice O'Connor's concurring opinion picks up the same theme:
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. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish.
Justice Scalia's dissent in the Kentucky case, by contrast, follows a disturbing theme, one that the majority in the Kentucky case (and the dissents in the Texas case) spent considerable effort rebutting.
The view of at least three members of the Court is that the First Amendment allows the government to favor religion, and that the First Amendment allows the government, to a degree, to say which religions are
right. Justice Scalia includes the following in his opinion (the emphasis is mine): "As one of our Supreme Court opinions
rightly observed, "We are a religious people whose institutions presuppose a Supreme Being." This remark, made in 1952, has been heavily criticized and the Court had largely backpedalled on it. Justice Scalia, however, would reinvigorate this rationale, and take it further. (Justice Rehnquist also recited this view in his opinion in the Texas case.) According to Justice Scalia, the government can declare that there is a deity (in other words, the government can declare that atheists and agnostics are in the wrong), and further, the government apparently can also declare that there is only a single god (i.e., that those that hold to non-monotheistic religions are also in the wrong). Also, government can also declare that the Almighty is concerned with human affairs (i.e., that various views of deism are wrong... even though many of the founders of the country were deists).
With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.
And, Justice Scalia says, government can expressly honor that god without establishing a religion.
Where does government acquire its knowledge or wisdom about the existence of a deity, the nature of this deity, the precise number of one deity, and the need for that deity to be honored? Justice Scalia doesn't say.
Justice Souter, Justice O'Connor and Justice Stevens (writing in the Texas case, not in the Kentucky case) take serious issue with Justice Scalia's view. Justice Scalia seems to be most stung by Justice Stevens's opinion, calling his arguments strawman arguments. And yet, there doesn't seem to be much straw in what Justice Stevens has to say:
A reading of the First Amendment dependent on either of the purported original meanings expressed above would eviscerate the heart of the Establishment Clause. It would replace Jefferson's "wall of separation" with a perverse wall of exclusion--Christians inside, non-Christians out. It would permit States to construct walls of their own choosing--Baptists inside, Mormons out; Jewish Orthodox inside, Jewish Reform out. A Clause so understood might be faithful to the expectations of some of our Founders, but it is plainly not worthy of a society whose enviable hallmark over the course of two centuries has been the continuing expansion of religious pluralism and tolerance.
Unless one is willing to renounce over 65 years of Establishment Clause jurisprudence and cross back over the incorporation bridge..., appeals to the religiosity of the Framers ring hollow.
...
I recognize that the requirement that government must remain neutral between religion and irreligion would have seemed foreign to some of the Framers; so too would a requirement of neutrality between Jews and Christians. ... Fortunately, we are not bound by the Framers' expectations--we are bound by the legal principles they enshrined in our Constitution. Story's vision that States should not discriminate between Christian sects has as its foundation the principle that government must remain neutral between valid systems of belief. As religious pluralism has expanded, so has our acceptance of what constitutes valid belief systems. The evil of discriminating today against atheists, "polytheists[,] and believers in unconcerned deities," ... is in my view a direct descendent of the evil of discriminating among Christian sects.
Justices Rehnquist and Thomas submitted detailed opinions in the Texas case, but their views are not all that different from what they've said before. Justice Thomas once again puts forth the bizarre notion that there cannot be establishment without coercion. Justice Stevens blasts this notion apart in a footnote.
The key opinion to read is that of Justice Breyer. His rationale for allowing the Texas monument is, in my judgment, weak. Basically, he focuses upon what he perceives as a secular purpose, apparently based on the obsevation that some of the commandments are secular. He also finds it significant that no one objected until now. These rationales are weak because the secular purpose aspect was undercut by the Kentucky case, and because it does not make sense to suggest that a long-standing wrong cannot be righted because it is long-standing. He adds the following strange observation:
As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation.
What is Justice Breyer really saying? I think this is the core of it:
Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.
