Supreme Court splits on Ten Commandments

Erwin Chemerinsky, a Duke University Law School professor who argued the Texas case, said future cases will depend on context and history. If the display is part of a broad presentation of sources of law such as exists at the US Supreme Court, the court will probably uphold it, he says. "But the court is always going to be looking at the purpose of the government action, the context, and history."

The decisions come in two different cases, Van Orden v. Perry, involving a Ten Commandments display on the Texas state capitol grounds in Austin, and McCreary County v. ACLU of Kentucky, involving a sequence of Ten Commandments displays on the walls of two county courthouses.

The Texas case involves a six-foot-tall tombstone-like monument donated to the state 40 years ago by a civic group, the Fraternal Order of Eagles.

Scores of similar monuments were donated to cities and towns across the nation as part of a promotion for Cecil DeMille's epic movie "The Ten Commandments." The monuments were displayed without controversy for decades, but in recent years, a series of legal challenges have been launched to have them removed from public property.

The Kentucky case involves an attempt by McCreary County officials to authorize the display of a framed copy of the Ten Commandments in local courthouses.

After the display triggered a lawsuit by the American Civil Liberties Union, officials responded by surrounding the Commandments with other historic documents mentioning God or raising religious themes. Upon obtaining advice from lawyers, the presentation was changed again, this time to include documents considered to have played a foundational role in the development of American law, including the Ten Commandments.

A federal appeals court upheld the Texas display, but a different appeals court panel struck down as unconstitutional the display in Kentucky.

Writing for the majority in the Kentucky case, Justice David Souter said that government officials had acted with an improper purpose in posting the Ten Commandments in courthouses. "When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment clause value of official religious neutrality," Souter writes.

"A purpose to favor one faith over another, or adherence to religion generally, clashes with the understanding that liberty and social stability demand a tolerance that respects the religious views of all citizens," he says.

He says the high court is not saying that a sacred text can never be integrated constitutionally into a governmental display on law or history. He cited as an example the frieze in the high court's own courtroom depicting Moses holding tablets with 17 other lawgivers.

Prior to Monday's rulings, the high court had last decided a Ten Commandments case in 1980, when the justices, in a 5-to-4 ruling, struck down a Kentucky law requiring the Decalogue be posted in public school classrooms.

"The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature," the high court said in 1980. "The Ten Commandments are undeniably sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact."

The Ten Commandments issue was the subject of extensive public debate in 2003 when Alabama Supreme Court Justice Roy Moore refused to obey a federal court order that he remove a 2-1/2 ton Ten Commandments monument he had placed in the rotunda of the state supreme court building. He was removed from office.

That monument is currently on a nationwide tour visiting various churches that support Mr. Moore's cause. It has become a symbol to many religious conservatives of what they view as a concerted campaign to erase any mention of God or religion from the public square in America.

• Linda Feldmann contributed to this report.

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