By MICHAEL COLLINS
Scripps Howard News Service
June 27, 2005
In two 5-4 decisions, the nation's high court ruled that displays in two county courthouses in rural Kentucky violated the constitutional ban on government "establishment of religion," but said that a 6-foot granite marker on the state Capitol grounds in Texas did not.
"This is a mixed verdict, but on balance it's a win for separation of religion and government," said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State.
"Public buildings belong to everyone. America is a diverse country and our government should not send the message that some faiths are preferred over others."
But Florida attorney Mathew Staver, who argued the Kentucky counties' case before the high court, warned that the battle is far from over.
"That the Ten Commandments would be deemed unconstitutional is an insult to the Constitution, to our shared religious history and to our veterans from whose blood liberty was birthed," Staver said.
"Our Constitution need not be amended to remedy today's decision. Our Constitution is sound."
The two cases have been closely watched by religious organizations and civil-liberties groups across the country and have been significant flashpoints in the culture wars that have divided America.
The rulings could impact hundreds, possibly thousands, of similar displays across the country.
The central question in both cases was whether the Ten Commandments are an integral part of America's legal and cultural history and should be allowed on public property, or whether such displays amount to an inappropriate endorsement of a particular religion.
In the Kentucky case, officials in Pulaski and McCreary counties in the southeastern part of the state put up privately donated, framed copies of the Ten Commandments in their courthouses in 1999.
After the American Civil Liberties Union of Kentucky sued, the counties changed the displays twice to include non-religious documents, such as the Magna Carta, the Declaration of Independence and the lyrics to "The Star-Spangled Banner."
But the high court ruled that the counties' intent was obvious. In Pulaski, the court noted, the county's top elected official was accompanied by his pastor, who spoke of the certainty of the existence of God.
"The reasonable observer could only think that the counties meant to emphasize and celebrate the commandments' religious message," Justice David Souter wrote for the majority.
The court did not say, however, that all displays containing the religious text should be barred from government property. The justices noted that a ceiling frieze in the Supreme Court chamber depicts Moses holding two stone tablets containing a portion of the commandments' Hebrew text.
But when the government acts with "the ostensible and predominant purpose of advancing religion," as the Kentucky counties did, such actions violate the separation of church and state, the majority said.
In the Texas case, the granite monument in question was donated by the Fraternal Order of Eagles and erected four decades ago.
The monument, which is similar to markers found on government property across the country, is inscribed with the biblical rules and is in the shape of the tablets that some religions believe that God gave to Moses.
But the court concluded that circumstances surrounding its placement and physical setting - the marker is one of 17 other monuments on the Capitol grounds - indicate that the text was to convey a predominantly secular message.
"The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government," Chief Justice William Rehnquist wrote for the majority in that case.
Justices also pointed out that the marker's presence went unchallenged for 40 years - an indication that few individuals believed it mounted to a government endorsement of religion, the court said.
Souter was joined in his opinion in the Kentucky case by Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sandra Day O'Connor.
In the Texas case, Rehnquist was joined in his opinion by Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. Breyer wrote a separate concurring opinion.
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