Supreme Court Series II: Ten Commandments on Government Property

Supreme Court Series II: Ten Commandments on Government Property

by Mariah Wojdacz, December 2009

Thou shalt not post the Ten Commandments ... or shalt thou? Two recent Supreme Court rulings did little to settle the ongoing debate over the separation of church and state. These highly anticipated rulings, handed down June 27, ordered that framed copies of the Ten Commandments be removed from a courthouse in Kentucky, but allowed a 6-foot granite replica in front of a Texas courthouse to remain.

Writing for the majority in the Kentucky case, Justice David H. Souter explained that reasoning of the Court was based on prior rulings: "The touchstone for our analysis is the principle that the First Amendment mandates government neutrality between religion and religion, between religion and nonreligion."

Justice Souter was joined by Justices John Paul Stevens, Sandra Day O'Connor, Ruth Bader Ginsburg, and Stephen G. Breyer. In the Texas case, however, Justice Stephen G. Breyer sided with Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Chief Justice William Rehnquist, who wrote the majority opinion in the Texas case.

"According to Judeo-Christian belief, the Ten Commandments were given to Moses by God on Mt.Sinai. But Moses was a lawgiver as well as a religious leader. And the Ten Commandments have undeniable historical meaning."

It all comes down to intent. Because Justice Breyer decided that the intent of the Kentucky monument was to promote religion, whereas in Texas the intent was purely historical, Americans are stuck with inconsistent rulings on the most explosive issue of our time.

Already, there is fallout. Both sides are claiming victory, vowing not to abandon their fight.

"We're very happy to see that the court ruled in our favor in one of these cases," said Ellen Johnson of the American Atheists. "These Ten Commandments are not the foundation of the laws of America, English Common Law is."

"This is a victory for our acknowledgement of God, for our religious liberty, and for our Judeo-Christian heritage," said Reverend Bob Schenck of the National Clergy Council.

Justice Scalia railed against what he sees as an inconsistent application of the law, saying that the majority opinion in the Kentucky case should be voided "because the court has not the courage (or the foolhardiness) to apply the neutrality principle consistently."

But are the rulings actually inconsistent, or did Justice Breyer have a constitutional foundation for voting differently?

The cases were brought before the court on the basis that the displays violated the Establishment Clause of the First Amendment. Americans point to this clause when they argue that the Constitution guarantees the separation of church and state. Many Americans would be shocked to learn that that is not at all what the Establishment Clause says.

What the Establishment Clause does say is this: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." There is nothing in the language of the Establishment Clause or anywhere else in the Constitution that guarantees any separation of church and state. That notion has become so infused into our culture that we believe those words appear in the founding documents when they in fact do not.

Words that do appear in our founding documents are "under God" in the Pledge of Allegiance; "so help me God" in the inaugural oath;"created equal" and "endowed by our Creator" in the Declaration of Independence, as well as many other references to an all-powerful, supreme being. In our courts we swear to tell the truth upon the Bible. Our money declares, "In God We Trust."

Justice Scalia calls attention to these references to God, writing in the dissent for the Kentucky case, "With all of this (and much more) staring it in the face, how can the Court possibly assert that 'the First Amendment mandates governmental neutrality ... between religion and non-religion.' Who says so? Surely not the words of the Constitution."

The Ten Commandments display in Kentucky was revised to include other historical documents after lower courts ruled against the county. In response to the lower court rulings, the county officials passed a resolution stating, "The judicial laws of God, as they were delivered by Moses, [should] be a rule to all the courts in this jurisdiction." While the resolution raised several Supreme Court Justices' eyebrows, it was not challenged in the case and as such, it still stands.

According to Constitutional Attorney Ann Coulter, "The First Amendment prohibits Congress from making any law 'respecting' an establishment of religion - meaning Congress cannot make a law establishing a religion, nor can it make a law prohibiting the states from establishing a religion" (emphasis added).

Coulter also points out many examples of anti-religious exhibits and performances, taxpayer-funded through the National Endowment for the Arts, including a statue of Christ submerged in a jar of urine. Is this the governmental neutrality between religion and non-religion that the Supreme Court cited in its ruling?

Regarding the rulings, Family Research Council president Tony Perkins told Fox News, "This is not so much about neutrality toward religion, but a growing hostility by this Court toward religion."

The only certainty gained from these conflicting rulings is the importance of the nominee to replace Justice Sandra Day O'Connor, who announced her resignation July 1. As Perkins points out, "almost every important case is decided by a 5-4 vote of the court." Perhaps the true motivation behind the conflicting rulings is the Justices' reluctance to remove their own Ten Commandments display, located inside the Supreme Court building. For many Americans, that is the only possible logic behind the court's opinion that makes any sense at all.