On the last day of its term, the Supreme Court handed down two separate anxiously awaited decisions involving the public display of the Ten Commandments on public property. To the dismay of those looking for the Court to enunciate a clear principle to guide us on future interpretations of the First Amendment's Establishment Clause, the Court gave two entirely different results applying different principles to reach its end. As Justice Antonin Scalia aptly put it in his dissenting opinion to one of the cases, we have a "dictatorship of a shifting Supreme Court" instead of judicial opinion "grounded in constitutionally applied principle." The absurdity of the Court's action in the two cases was evidenced by the witnessing of supporters on both sides of the issue declaring victory on the steps of the Supreme Court.
In the first case, McCreary County v. ACLU, the Court was confronted with the display of the Ten Commandments on the walls of the courthouses in two Kentucky counties, which displays were ordered by the respective legislative bodies of the two counties. Both the legislative directives and the ceremonies surrounding the display of the Ten Commandments evidenced a religious purpose for them. The Court ruled in a 5-4 vote that the display of the Ten Commandments in the Kentucky courthouses failed the test of "neutrality" the Court has enunciated in the past in the context of First Amendment Establishment Clause cases. According to the "neutrality" principle, the First Amendment "mandates governmental neutrality between religion and religion, and between religion and nonreligion." The test used by the Court in determining "neutrality" in the McCreary case is the so-called Lemon test. This test was first established in Lemon v. Kurtzman in 1971. This case involved the use of state funds by the State of Pennsylvania to subsidize private, religious schools, which the Court struck down. In reaching its decision, the Court devised a 3-part test to determine a statute's constitutionality under the First Amendment: (1) the statute must have a secular legislative purpose; (2) the principal effect of the statute must be one that neither advances religion nor inhibits religion; and (3) the statute must not foster an excessive entanglement with religion. In a majority opinion written by Justice David Souter, the Court in McCreary, looking at the legislative history and circumstances surrounding the display of the Ten Commandments in the Kentucky courthouses, concluded that their purpose was for religious purposes and not secular purposes. The Court similarly ruled 25 years ago in striking down the placement of the Ten Commandments in Kentucky public classrooms in Stone v. Graham applying these same principles.
In the second case, Van Orden v. Perry, the Court was presented with a public display of the Ten Commandments on the lawn of the Texas State House. The display here was a gift from the Eagles, a group described as being "social, civic and patriotic", made 40 years ago to the State of Texas. The Eagles' purpose in making the gift was described as "shaping civic morality." The dedication ceremony for the display was presided over by two state legislators. In a 5-4 decision written by Chief Justice William Rehnquist, the Court ruled that the display did not violate the Establishment Clause. The Court, on the same day it decided McCreary and on the same matter of displays of the Ten Commandments on public property, refused to apply the Lemon test as it had in the McCreary case. The majority opinion dissed the Lemon test, even questioning its future. While acknowleging that the Ten Commandment are purely "religious", the Chief Justice opined that Moses was also a "lawgiver" in as much as he was a religious figure, and that the Ten Commandments have an "undeniable historical meaning." The Court reasoned that the display was far more "passive" in this case than was the display in the Stone case, that a person (including the plaintiff in this case) had to go out of his/her way to view the display, and that noone had complained of the display until 40 years after their original placement. The Court concluded that the display served a dual purpose, "partaking of both religion and government," and as such, did not violate the Establishment Clause. A single member of the Court, Justice Steven Breyer, switched his vote in Van Orden to uphold the public display of the Ten Commandments at the Texas State House. In his concurring opinion, Breyer said "a display that communicates not simply a religious message, but a secular message as well" does not violate the Establishment Clause.
The Court, in reaching two very different outcomes, on essentially the same matters has undermined its own credibility. Justice Souter in the majority opinion in McCreary lamented that the "Court lacks the comfort of categorical absolutes." Justice Scalia, however, got it right, if not on the ultimate outcome, that "[w]hat the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not." The lack of a constitutionally grounded principle leads to the "dictatorship of a shifting Supreme Court" as Scalia sharply explained. The only conclusion one can reach by the outcome in these two decisions is that one member, Justice Breyer, thought it not right that the Court have a single guiding principle to guide us in Establishment Clause cases. With the likely retirement in the near future of Justices Rehnquist and O'Connor, perhaps Justice Breyer did not want to risk inciting the "religious right" on the eve of future confirmation votes. Whatever his reason, his failure to take a principled position has left us all at the whim of five justices at any future point in time to make a decision that fits their current thinking. In soing doing, he has completely "discredited" what principles the Court had enunciated in the past in order to avoid the "foolhardiness" as Scalia suggested if the Court dared apply its Lemon test consistently.
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