August 2010, Week 4


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Fri, 27 Aug 2010 20:41:25 -0400
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Nine Justices and Ten Commandments

August 26, 2010

While the politically manipulated controversy over the
proposed Islamic center in Lower Manhattan will
eventually end, there is one dispute over religious
symbolism and identity that remains, apparently,
endless. I'm referring to the continuing effort by
state and local governments to post the Ten
Commandments in public places.

Believe it or not, a familiar Ten Commandments case is
now heading back to the Supreme Court. The court has
spent years making a nearly complete hash out of the
public display of religious symbols, and the prospect
of watching lawyers and justices engage in still more
contorted efforts to attach supposedly secular meaning
to obviously sectarian objects and texts is not a
pleasant one. But the case could provide a window on
how committed the Roberts court is to the project that
some justices have clearly embraced, that of carving
out more space for religion in the public square.

The new/old case is McCreary County v. American Civil
Liberties Union of Kentucky, which the Supreme Court
last encountered in 2005. Its history is convoluted,
which is part of the point. Eleven years ago, officials
of two Kentucky counties, McCreary and Pulaski, decided
to post framed paper copies of the Ten Commandments on
the courthouse walls. Faced with a lawsuit, they
retooled the display to make the Commandments part of a
bigger collection of documents, most of which happened
to be religiously oriented, including the national
motto, "In God We Trust," and a statement by Abraham
Lincoln that "the Bible is the best gift God has ever
given to man."

When this tactic did not satisfy a federal district
judge, who ordered the displays removed immediately,
the counties tried again. They came up with the
"Foundations of American Law and Government" displays,
which included the Ten Commandments along with nine
other documents, including the lyrics of "The Star-
Spangled Banner" and the texts of the Declaration of
Independence and Magna Carta. An explanation informed
viewers that "the Ten Commandments have profoundly
influenced the formation of Western legal thought and
the formation of our country" and have provided "the
moral background of the Declaration of Independence."

The federal courts remained unimpressed. The district
court's preliminary order to remove the display was
upheld by the United States Court of Appeals for the
Sixth Circuit and, over a stinging dissenting opinion
by Justice Antonin Scalia, by the Supreme Court.
Justice David H. Souter, writing for the 5-to-4
majority, cited a 1980 Supreme Court decision that
overturned a Kentucky law requiring a copy of the Ten
Commandments to be posted in every public school
classroom. In that decision, Stone v. Graham, the court
described the Commandments as "an instrument of
religion." Justice Souter said the First Amendment's
inclusion of the clause prohibiting the "establishment"
of religion meant that "the government may not favor
one religion over another, or religion over
irreligion." He added that when the government departs
from that principle, "nothing does a better job of
roiling society."

Noting that "reasonable observers have reasonable
memories," Justice Souter said that an observer of the
Foundations display "would probably suspect that the
counties were simply reaching for any way to keep a
religious document on the walls of courthouses
constitutionally required to embody religious

That seemed to be that. But what happened next
illustrates the tenacity of those, in Kentucky and
across the country, who are bound and determined to
have those Commandments on the wall. As a procedural
matter, the case was only at the preliminary injunction
stage when it reached the Supreme Court, with the
result that the justices returned it, still alive, to
the Federal District Court in London, Ky., for a
potential trial. In an effort to bolster their case,
the counties passed resolutions in 2007 declaring that
the Foundations display was not an attempt to endorse
religion. In a 2008 final judgment, Chief Judge
Jennifer B. Coffman ruled against the counties. In
June, the Court of Appeals affirmed that ruling over a
fierce dissent by Judge James L. Ryan, who criticized
the Supreme Court's "persistent hostility to religion."
Judge Ryan's dissenting opinion also praised Justice
Scalia's "powerful and logically compelling" dissent in
the 2005 case, and added that he looked forward to the
day when "the Supreme Court rediscovers the history and
meaning of the words of the religion clauses of the
First Amendment."

A dissenting opinion like that is basically a memo to
the four justices who dissented the last time: take
this case if you think you can pick up a fifth vote. In
addition to Justice Scalia, the dissenters were
Justices Clarence Thomas and Anthony M. Kennedy along
with Chief Justice William H. Rehnquist, casting one of
the last votes of his life. Looking at today's court,
substituting Chief Justice John G. Roberts Jr. for his
predecessor, and adding Justice Samuel A. Alito Jr.,
who replaced a majority voter, Justice Sandra Day
O'Connor, it is quite plausible to imagine five
justices willing to take the counties at their word and
conclude that the displays are about civics and not
religion. That's what the counties' lawyer, Mathew D.
Staver, dean of the Liberty University School of Law is
predicting. "It's pretty clear to everyone" that the
Supreme Court has moved in his direction, Mr. Staver
told the Courier-Journal in Louisville last week, after
the announcement that the counties would bring their
case back to the Supreme Court.

The American Civil Liberties Union has evidently
reached the same conclusion. It decided against filing
a Supreme Court appeal in still another Ten
Commandments case in still another Kentucky county,
Grayson County, in which a different three-judge panel
of the Sixth Circuit earlier this year upheld the
Foundations of American Law and Government display.

There is no doubt the court is changing, in ways that
may not be immediately obvious. Cases that concern the
separation of church and state are among those on which
the retirement of Justice John Paul Stevens is likely
to have the greatest impact. For years, Justice Stevens
was the Supreme Court's strictest separationist. For
example, in the abortion context, he was the only
justice willing to articulate the position that laws
incorporating the view that life begins at conception
are theological exercises that should be invalidated on
Establishment Clause grounds. (The fact that we may
soon have to endure another debate over embryonic stem
cell research makes me miss Justice Stevens and his
wisdom all the more.) Justice Stevens lost most of his
battles in the religion cases, but even in defeat he
set a marker and made a record. For example, he wrote a
powerful dissent this spring from a splintered and
nearly incoherent decision that let Congress get away
with swapping public land for private under the foot of
a five-foot-tall cross on a hilltop in the Mojave
National Preserve. In his opinion in that case, Salazar
v. Buono, Justice Stevens said the cross sent a
"starkly" and "inescapably sectarian message" that
couldn't be evaded by deeming the cross a memorial to
the fallen soldiers of World War I.

Until I began to research the latest chapter in the
Kentucky Ten Commandments saga, I had no idea that
Foundations of American Law and Government displays
have basically gone viral, popping up all over the
place in the five years since the court's ruling in the
McCreary County case. The South Carolina Legislature
enacted a law to permit the Foundations display to be
erected "in a visible, public location in the public
buildings of this state and its political
subdivisions." Any such display "must include" a
description of the Ten Commandments as the Kentucky
counties described them, as "the moral background of
the Declaration of Independence and the foundation of
our legal tradition."

The rapid spread of the Foundations displays apparently
stems from legal advice based on an interpretation of a
single sentence in Justice Souter's opinion in the
original McCreary County case. In concluding that, when
assessed in their context, the Kentucky counties'
displays lacked an authentic secular purpose, Justice
Souter noted that the court did not "have occasion here
to hold that a sacred text can never be integrated
constitutionally into a governmental display on the
subject of law, or American history."

I think it was a misreading, in 2005, to understand
this sentence as a green light for gaming the system.
For one thing, Justice Souter's response to the
Foundation display's description of the Ten
Commandments as the moral underpinning of the
Declaration of Independence amounted to incredulity
bordering on sarcasm. The description was "puzzling,"
Justice Souter wrote, because "the Commandments are
sanctioned as divine imperatives, while the Declaration
of Independence holds that the authority of government
to enforce the law derives from the `consent of the
governed.'?" The secular purpose "has to be genuine,
not a sham," he said, adding that the counties appeared
to assume that, to the contrary, "any trivial
rationalization would suffice." I find it hard to read
those words and imagine that Justice Souter, a serious
churchgoing Episcopalian, meant to suggest that some
other Foundations display on some other courthouse wall
would receive the court's blessing.

But that was in 2005, and here we are in 2010 - same
Commandments, different court.


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