The Ten Commandments were back in the news this week. A ballot proposition in favor of public acknowledgment of God was approved by 95.14% of the voters in the Texas Republican primary. According to those voters, the use of the word "God," prayers and the Ten Commandments should be allowed at public gatherings and public educational institutions, as well as be permitted on government buildings and property. The Supreme Court denied review of a Tenth Circuit ruling that Haskell County, Oklahoma officials violated the Establishment Clause when they allowed a Ten Commandments monument to be displayed on county courthouse grounds in Stigler, Oklahoma. County officials had asked the Court to hear their appeal because of confusion in the case law and the lower courts about the constitutionality of Ten Commandments displays on public property.
That confusion should be easily clarified. The Court should rule that all Ten Commandments displays commenced after June 27, 2005 are clearly unconstitutional. Such a ruling is necessary to stop any plans by Texas Republicans or other commandments supporters to fill the public spaces with Christian monuments.
The legal confusion is based on two conflicting Supreme Court precedents about the Ten Commandments decided on June 27, 2005. The first upheld the display of a monument on state capitol grounds in Austin, Texas, while the second invalidated postings of the commandments on the walls of a county courthouse in McCreary County, Kentucky. Both cases were decided by 5-4 votes. The decisive swing voter was Justice Stephen Breyer, who upheld the Texas display on the shaky reasoning that the display had survived for forty years without legal challenge. Breyer also suggested that religious discord would increase if longstanding monuments were removed from public spaces.
The other four voters were less hesitant in defending the commandments, arguing that the displays have an undeniable historical meaning in addition to their religious content. This secular, historical meaning is supposed to shield the commandments from Establishment Clause review.
Justice Breyer may have a valid point that ripping up older monuments sometimes appears unseemly. Nonetheless, commandments supporters have unwisely interpreted the decisions as a green light to add their new monuments to the public landscape and a red light to block the construction of other religious symbols. In a free speech case from Utah, after the Court ruled that the Summum Religion did not have free speech rights to have its Seven Aphorisms monument displayed alongside the Ten Commandments, Justice Antonin Scalia announced that Summum would also lose any Establishment Clause challenge to the Ten Commandments monument because the Texas case had upheld such displays. Summum is now back in court arguing the Establishment Clause issue. Despite what Justice Scalia wrote, if the Establishment Clause means anything, Summum should win. How can the government install one religious monument and forbid another without violating the First Amendment?
The Oklahoma case, which the Court refused to rehear, was unusual. There, in a fact-intensive inquiry, the court found that the county commissioners had participated in the installation ceremony and made public statements--("The good Lord died for me. I can stand for him. And I'm going to." "That's what we're trying to live by, that right there.")--that endorsed religion. Even on those facts, the Tenth Circuit judges divided on the constitutional question, and the county sought vindication in the U.S. Supreme Court. Like Justice Scalia, the dissenters inconsistently described the commandments as secular, historical monuments that offer no threat of religious establishment at the same time that they praised the content of their religious message.
Justice Breyer's concern about older monuments suggests a possible compromise. No new commandments monuments on public grounds. The old commandments remain only if their competitors--like Summum's Seven Aphorisms--find equal space beside them. The new monuments would become a visible reminder that government support of one religion has been a losing proposition since the Framers drafted the First Amendment.