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The 11th commandment

The Supreme Court's fractured rulings on religious displays areonly likely to invite more challenges.

As it struggled to respect both the Establishment Clause and the Ten Commandments, the U.S. Supreme Court wrote Monday what amounts to a constitutional 11th commandment. In the words of Justice David Souter: "Context matters."

The court, or more particularly Justice Stephen Breyer, used "context" to distinguish the framed Ten Commandments in Kentucky courthouses from the 6-foot granite marker on the grounds of the Texas Capitol. The former were installed in 1999 as a part of an undisguised attempt to make a religious statement, with Kentucky officials so bold as to speak of "honoring Jesus Christ, the Prince of Ethics." The latter was erected in 1961 by the Fraternal Order of Eagles, funded in part by a movie director, and stands among 17 monuments and 21 markers that commemorate various Texas historical figures.

As such, the Kentucky commandments were ordered removed, by a 5-4 vote. The Texas monument can stay, said the court by a 5-4 vote. Breyer, appointed by President Clinton, was the swing vote.

"If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases," Breyer wrote in the Texas case. "And in such cases, I see no test-related substitute for the exercise of legal judgment. . . . No exact formula can dictate a resolution to such fact-intensive cases."

Breyer's framework has a common sense appeal to it. Displays with religious content can be placed on public property if the intent is secular in nature, but not if the objective is to proselytize. As a guide, he says to look at the history, the expressed intentions and whether the Commandments are part of a larger display. He also took pains to avoid a confrontation over the hundreds or thousands of monuments that, like the Texas display, have long existed without controversy on public lands. Their removal, he said, could "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

What is far from clear, however, is whether Breyer's dividing line will be respected, or even understood. On the same day the opinions were released, the Washington-based Christian Defense Coalition announced a national campaign to install Ten Commandments displays in 100 cities. "We see this as a historic opening, and we're going to pursue it aggressively," the Rev. Patrick J. Mahoney, director of the coalition, told the Washington Post. The Rev. Mahoney's purpose is not secular.

Breyer may want to play the peacemaker, but religion and government inevitably collide. The court itself provided a vivid example of the emotional intensity such debates produce. The justices filed 10 different signed opinions in the two cases and questioned each other's motives in the process. Justice Antonin Scalia went so far as to read lengthy passages of his seething dissent in the Kentucky case, saying it "ratchets up this court's hostility to religion."

Give Breyer credit for trying to find an equilibrium, but the court's fractured opinions will only invite more challenges. The climate of fervor and intolerance that is fueling these showdowns will no doubt produce more.

[Last modified June 29, 2005, 01:18:19]