A stone monument of the Commandments on the grounds of the Texas Capitol was ruled constitutional Monday. The decisions in the two separate cases came on the final day of the court's 2004-2005 term, a term shadowed by Chief Justice William H. Rehnquist's illness and speculation about his retirement plans. But if the 80-year-old chief justice, who has been battling thyroid cancer, has such plans, he gave no indication of them as he presided over the hourlong proceedings. He even joked at one point, observing after he described the complicated voting pattern in the Texas Ten Commandments case that "I didn't know we had that many people on our court."
The vote in each Ten Commandments case was 5 to 4, with both majorities emphasizing, to varying degrees, the significance of the particular context in which the Commandments were displayed. The question was whether either display violated the First Amendment's prohibition against an official "establishment" of religion. To the extent that the decisions provided guidelines for the further cases that are all but certain to follow, it appeared to be that religious symbols that have been on display for many years, with little controversy, are likely to be upheld, while newer displays intended to advance a modern religious agenda will be met with suspicion and disfavor from the court. Only Justice Stephen G. Breyer agreed with both decisions, a development that appears to give him the balance of power in a contentious area of the court's docket that has been controlled most often in the past by Justice Sandra Day O'Connor. For her part, Justice O'Connor voted in each case with the group that found the displays unconstitutional, a surprising development given her past voting record. She explained herself in a concurring opinion in the Kentucky case, McCreary County v. American Civil Liberties Union, No. 03-1693, which was decided with a majority opinion by Justice David H. Souter. "It is true that many Americans find the Commandments in accord with their personal beliefs," Justice O'Connor said in her concurring opinion. "But we do not count heads before enforcing the First Amendment." Justice O'Connor said the country had worked well, when compared with nations gripped by religious violence, by keeping religion "a matter for the individual conscience, not for the prosecutor or bureaucrat." She added: "Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: why would we trade a system that has served us so well for one that has served others so poorly?" The result in the Kentucky case provoked a particularly bitter dissenting opinion from Justice Antonin Scalia, who read from it at length on Monday morning. He accused the majority of expressing hostility to religion and deviating from the intent of the Constitution's framers. "Nothing stands behind the court's assertion that governmental affirmation of the society's belief in God is unconstitutional except the court's own say-so," Justice Scalia said. Noting the court's inconsistency in the church-state area, in which decisions have upheld property-tax exemptions for churches and the employment of chaplains by state legislatures, Justice Scalia said the court had often deviated from the principle the majority now invoked of official neutrality between religion and nonreligion. What could be the reason for the inconsistency, he asked, and then gave this answer: "I suggest it is the instinct for self-preservation, and the recognition that the court, which 'has no influence over either the sword or the purse,' cannot go too far down the road of an enforced neutrality that contradicts both historical fact and current practice without losing all that sustains it: the willingness of the people to accept its interpretation of the Constitution as definitive, in preference to the contrary interpretation of the democratically elected branches." The two cases produced a total of 10 opinions, totaling 136 pages. Outside the court, the split decisions enabled each side in the larger debate over the role of religion in the public square to claim a measure of victory. It may take further litigation, not in these particular cases but in others that raise related questions, before the import of the decisions becomes clear. For example, on Tuesday the justices are expected to announce the disposition in several cases they have held in abeyance while these were pending. One is an appeal by a South Carolina town, Great Falls, of a ruling that it could not constitutionally open sessions of its town council with a prayer invoking the name of Jesus Christ. At the least, the ruling on Monday in the Texas case, Van Orden v. Perry, No. 03-1500, will immunize from constitutional challenge hundreds of granite Ten Commandments monuments that were erected in public places around the country by the Fraternal Order of Eagles, a national civic organization, in the 1950's and 1960's. According to the Eagles at the time, exposing the nation's youth to the Ten Commandments would lead to a decrease in juvenile delinquency. The monument on the grounds of the Texas Capitol is one of 17 monuments and 21 historical markers that decorate the 22-acre park. The Ten Commandments monument was challenged by Thomas Van Orden, a law school graduate, now homeless, who passes it as he uses the library at the state Supreme Court, near the Capitol. Both the federal district court in Austin and the United States Court of Appeals for the Fifth Circuit, in New Orleans, found that the monument had a valid secular purpose and did not violate the Constitution. The Supreme Court affirmed that ruling Monday with the combined opinions of Chief Justice Rehnquist and Justice Breyer. The Rehnquist opinion attracted three other votes, those of Justices Scalia, Anthony M. Kennedy and Clarence Thomas. "Of course, the Ten Commandments are religious," Chief Justice Rehnquist said; some supporters of displaying the Commandments had tried to argue to the court that the monuments should essentially be regarded as codes of secular law. The chief justice said that in addition to their religious significance, "the Ten Commandments have an undeniable historical meaning." He added, "Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause." Chief Justice Rehnquist drew a distinction between the Texas monument and a case from 1980 in which the court struck down a Kentucky law requiring copies of the Commandments to be posted in public school classrooms. The display on the Capitol grounds "is a far more passive use of those texts," he said. Justice Breyer's concurring opinion said the case was a "borderline case" that depended not on any single formula but on context and judgment. The monument's physical setting, he said, "suggests little or nothing of the sacred." The fact that 40 years had passed without dispute, until Mr. Van Orden filed his lawsuit, suggested that the public had understood the monument not as a religious object but as part of a "broader moral and historical message reflective of a cultural heritage." Further, Justice Breyer said, a contrary decision would lead to the removal of many longstanding depictions of the Ten Commandments in public places, and "it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid." The dissenters in the Texas case were the four justices who, along with Justice Breyer, found the Kentucky courthouse displays unconstitutional. They were Justices John Paul Stevens and Ruth Bader Ginsburg in addition to Justices Souter and O'Connor. Justice Stevens, in a dissenting opinion in the Texas case, said that the Ten Commandments were inherently religious and that by displaying them, Texas gave the message that "this state endorses the divine code of the Judeo-Christian God." In his majority opinion in the Kentucky case, Justice Souter emphasized the history of the courthouse displays, which began as solitary displays of the Ten Commandments and became part of a broader display of historical documents only in the face of litigation. The claim by Pulaski and McCreary Counties that the displays had a secular purpose "was an apparent sham," he said, adding, "Reasonable observers have reasonable memories." The decision upheld a ruling by the United States Court of Appeals for the Sixth Circuit, in Cincinnati.