Court: Some Ten Commandments Displays OK
WASHINGTON – The Supreme Court struggled in a pair of 5-4 rulings Monday to define how much blending of church and state is constitutionally permissible, allowing the Ten Commandments to be displayed outside the Texas state capitol but not inside Kentucky courthouses.
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But framed copies in two Kentucky courthouses went too far in endorsing religion, the court held. Those courthouse displays are unconstitutional, the justices said, because their religious content is overemphasized.
Not surprisingly, I agree with that one. It seems painfully obvious when you read exactly what they did:
As directed by the resolutions, the Counties expanded the displays of the Ten Commandments in their locations, presumably along with copies of the resolution, which instructed that it, too, be posted, id., at 9. In addition to the first displays large framed copy of the edited King James version of the Commandments, the second included eight other documents in smaller frames, each either having a religious theme or excerpted to highlight a religious element. The documents were the endowed by their Creator passage from the Declaration of Independence; the Preamble to the Constitution of Kentucky; the national motto, In God We Trust; a page from the Congressional Record of February 2, 1983, proclaiming the Year of the Bible and including a statement of the Ten Commandments; a proclamation by President Abraham Lincoln designating April 30, 1863, a National Day of Prayer and Humiliation; an excerpt from President Lincoln’s Reply to Loyal Colored People of Baltimore upon Presentation of a Bible, reading that ”[t]he Bible is the best gift God has ever given to man”; a proclamation by President Reagan marking 1983 the Year of the Bible; and the Mayflower Compact.
Gee, I think we’re seeing a pattern.
Scalia lets loose on the decision and on Stevens’s dissent in the Texas case in his dissent. Some of it is plainly bizarre: he apparently failed to read Stevens’s citation for an argument he made (Stevens dissent in Van Orden, footnote 32) before attacking him and he attacks Stevens for making a nonsensical argument:
JUSTICE STEVENS also appeals to the undoubted fact that some in the founding generation thought that the Religion Clauses of the First Amendment should have a narrower meaning, protecting only the Christian religion or perhaps only Protestantism. See Van Orden, ante, at 2022. I am at a loss to see how this helps his case, except by providing a cloud of obfuscating smoke. (Since most thought the Clause permitted government invocation of monotheism, and some others thought it permitted government invocation of Christianity, he proposes that it be construed not to permit any government invocation of religion at all.)
Oddly, Scalia seems to understand the point of his argument a bit later:
JUSTICE STEVENS argues that original meaning should not be the touchstone anyway, but that we should rather expoun[d] the meaning of constitutional provisions with one eye towards our Nations history and the other fixed on its democratic aspirations. Van Orden, ante, at 2728 (dissenting opinion). This is not the place to debate the merits of the living Constitution, though I must observe that JUSTICE STEVENS quotation from McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), refutes rather than supports that approach.
That was exactly Stevens’s point with that argument:
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 Jeffersons wall of separation with a perverse wall of exclusionChristians 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.
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It is our duty, therefore, to interpret the First Amendment’s command that Congress shall make no law respecting an establishment of religion not by merely asking what those words meant to observers at the time of the founding, but instead by deriving from the Clauses text and history the broad principles that remain valid today. As we have said in the context of statutory interpretation, legislation ”often [goes] beyond the principal evil [at which the statute was aimed] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998). In similar fashion, we have construed the Equal Protection Clause of the Fourteenth Amendment to prohibit segregated schools, see Brown v. Board of Education, 349 U. S. 294 (1955), even though those who drafted that Amendment evidently thought that separate was not unequal. We have held that the same Amendment prohibits discrimination against individuals on account of their gender, Frontiero v. Richardson, 411 U. S. 677 (1973), despite the fact that the contemporaries of the Amendment ”doubt[ed] very much whether any action of a State not directed by way of discrimination
against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision,” Slaughter-House Cases, 16 Wall. 36, 81 (1873). And we have construed ”evolving standards of decency” to make impermissible practices that were not considered “cruel and unusual” at the founding. See Roper v. Simmons, 543 U. S. ___, ___ (2005) (slip op., at 1) (STEVENS, J., concurring).
To reason from the broad principles contained in the Constitution does not, as JUSTICE SCALIA suggests, require us to abandon our heritage in favor of unprincipled expressions of personal preference. The task of applying the broad principles that the Framers wrote into the text of the First Amendment is, in any event, no more a matter of personal preference than is ones selection between two (or more) sides in a heated historical debate. We serve our constitutional mandate by expounding the meaning of constitutional provisions with one eye towards our Nation’s history and the other fixed on its democratic aspirations.
Sorry for the long quote, but it seemed necessary. The Texas case decision I don’t agree with:
In contrast, a 6-foot-granite monument on the grounds of the Texas Capitol — one of 17 historical displays on the 22-acre lot — was determined to be a legitimate tribute to the nation’s legal and religious history.
A legitimate tribute where all the monuments surrounding it have something to do with specific Texas history? Stevens puts it best (again):
The sole function of the monument on the grounds of Texas State Capitol is to display the full text of one version of the Ten Commandments. The monument is not a work of art and does not refer to any event in the history of the State. It is significant because, and only because, it communicates the following message:
[Ten Commandments]
…The message transmitted by Texas chosen display is quite plain: This State endorses the divine code of the Judeo-Christian God.
Well, one out of two isn’t terrible, I guess.
UPDATE: There are more intelligent commentaries here and here.
