The U.S. Supreme Court handed down its long-expected decisions on the public display of the Ten Commandments on Monday, producing more confusion than clarification in the process. Before the day was out, the nation's High Court had handed down two decisions, represented by eight separate opinions from nine justices. At the end of the day, the real winners were the lawyers, who can look forward to a tidal wave of litigation in the aftermath of these confusing decisions.

The cases originated in Kentucky and Texas, and the particulars of the two cases differ in significant ways--at least according to a majority of the justices. In Kentucky, two counties had moved to display the Ten Commandments, along with other documents, in 1999. Controversy quickly ensued, and lawsuits were filed claiming that the displays represented an unconstitutional establishment of religion. In Texas, a monument that included the text of the Ten Commandments had stood for 40 years on the grounds of the Texas Capitol. The original plaintiff in that case charged that passing by the monument with the Ten Commandments represented a violation of his own constitutional rights.

Both decisions saw the Court divided five to four, though some justices switched sides from one case to the other. The Court ruled that the Kentucky displays must be removed, since those particular displays were, the justices argued, the result of a religiously motivated purpose. The Texas monument was allowed to stay because the justices ruled that this particular monument did not represent an unconstitutional establishment of religion. Taken together, the two decisions sent a decidedly mixed signal. Adding further confusion, the Court asserted that displays including explicitly religious texts, such as the Ten Commandments, must be scrutinized on a case-by-case basis. Thus, the lawyers are likely to be busy for many years to come.

The justice who played the deciding role in both decisions was Justice Stephen Breyer. Writing a concurring opinion in the Texas case, Justice Breyer argued that legal judgment was required in the "difficult borderline cases" that rest on particular facts, rather than generalized principles. In other words, Justice Breyer argued that the judges must use their own judgment and intuition in order to determine whether or not a particular display violates constitutional principle.

Oddly enough, Justice Breyer asserted that the "determinative" issue in the Texas case was the fact that four decades had passed "in which the presence of this monument, legally speaking, went unchallenged." He compared this to the Kentucky case, in which controversy had emerged even before the documents had been displayed.

Justice Breyer's legal theory merits closer scrutiny. The obvious problem with his argument is the fact that he would be unwilling to apply the same theory in similar cases. His thesis is that many years of no controversy indicates, by his "legal judgment," that the expression or display serves a secular purpose. What about school prayer? Public prayer was allowed in public schools for many decades--far longer than the Texas monument has existed--and yet Justice Breyer would be very unlikely, to say the least, to argue that a long period lacking in controversy in that case should be similarly interpreted.