Commandments Rulings Clarify Little, Say Pro-Family Groups

June 27, 2005

So it's okay for the Ten Commandments to be displayed on public lands -- but not in courtrooms? That confusing thought must have some people shaking their heads in reaction to today's rulings announced by the U.S. Supreme Court as it closed out its term.

In identical 5-4 votes, the high court has ruled that because the Ten Commandments displays in two Kentucky courthouses were motivated by a religious purpose, they are unconstitutional -- but that a monument on the capitol grounds in Austin, Texas, that contains the Decalogue may remain. Both majority opinions cite the Establishment Clause -- the so-called "separation of church and state" -- in their decisions.

Writing for the majority in the Kentucky cases, Justice David Souter wrote that "when the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality." Only "neutral" displays -- in historical context, for example -- are permissible, said the court. Joining Souter in the ruling against the Kentucky displays were Justices John Paul Stevens, Ruth Bader Ginsburg Stephen Breyer, and Sandra Day O'Connor..

Stating the majority opinion in the Texas case, Chief Justice William Rehnquist recognized the obvious "religious" nature of the Ten Commandments -- and has no problem with it. He wrote that "of course" the Ten Commandments are religious, and therefore the Texas monument "has religious significance."

"[But] simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause," he added.

Attorneys React

Pro-family attorneys are using words like "ominous" and "dangerous" to describe the possible fallout over the fractured nature of the decisions handed down in the two Ten Commandments cases. Pat Trueman with the Family Research Council, while acknowledging the split decision offers a "bit of positive," says it is unfortunate that the court is basically saying that a religious display that contains the Ten Commandments or otherwise "is okay so long as you are not honoring God."

Trueman says the Kentucky decision is particularly ominous because of what it has established. "Religion and non-religion are on equal footing -- and that's dangerous," he adds.

Trueman's comrade at FRC offers a biblical metaphor. "The court came down somewhere between Mount Sinai and the golden calf," says FRC president Tony Perkins. "The one case, in Texas, saying the display was okay; but in the other case showing a growing hostility -- not neutrality, but hostility -- toward religion, in particular Christianity."

Steve Crampton, chief counsel at the American Family Association Center for Law & Policy, is strongly critical of the Kentucky decision, saying it "smacks of judicial tyranny" to second-guess the "hidden purposes" of the commissioners who placed the displays. "The [Supreme] Court has tightened its grip on every aspect of our lives," he says. "These five un-elected people in black robes are not declaring law; they are arbitrarily setting social policy for the entire country."

He contends the split decision will have a major impact on future court decisions regarding interaction between church and state. "The sad result of what we're seeing from the Supreme Court today is their consolidated hold on ultimate authority," he states. "Every display of the Ten Commandments is going to be a question mark until the U.S. Supreme Court precisely announces what the rule is in those particular facts."

And Crampton laments that today's rulings really do not clear up the issue of the constitutionality of public Ten Commandments displays. "There is no 'bright line' rule of law, in other words," he says. "It's just whatever the court says it is as to what's constitutional and what's not." He explains further: "The fractured nature of the opinion loudly underscores the utter lack of any clear rule of law in these matters."

The attorney says that is simply not right. "It is not in accord with the intention of the founders, and it is not constitutional law for them to tell us how many, in this case, 'secular documents' have to go alongside of the Ten Commandments in order to make it constitutional," Crampton says. "Mere acknowledgment of religion is not an establishment of religion."

Liberty Counsel's Mat Staver concurs. "The founders would be outraged that we are even debating the constitutionality of the Ten Commandments," Staver offers. "That the Ten Commandments would be deemed unconstitutional is an insult to the Constitution." He contends the Constitution is "strong" and need not be amended to remedy these decisions. But something is needed, he adds: "[J]udges who understand the rule of law and who respect the Constitution."

Crampton urges supporters of the Ten Commandments not to be discouraged. "I would encourage those who believe in the proper place of religion in the public square to not let these cases dissuade us," he says. "We cannot be discouraged; we've got to continue on with the fight because there is a proper place for religious displays in the public."