WASHINGTON — Nebraska's Legislature can open its sessions with a prayer from a chaplain paid by the taxpayers, and a city in Rhode Island can set up a nativity scene near a display of Santa and his reindeer. But a crèche inside a county courthouse is not allowed.
Determining when a government action amounts to a state endorsement of religious views, a violation of the First Amendment's ban on "establishment of religion," has proven to be one of the thorniest areas of federal constitutional law. As Justice Sandra Day O'Connor put it during oral arguments on the Ten Commandments cases, "It's so hard to draw the line."
Monday’s court decisions are good examples of the challenge, as the court ruled it's okay to display the Ten Commandments on public property in certain cases -- but not to promote religion.
In the first ruling, the high court rejected two displays in Kentucky courthouses, saying they promoted a religious message. But a second ruling said a six-foot monument on the grounds of the Texas capitol didn't cross the line between church and state. The monument is one of 17 historical displays there.
Earlier ruling
The Supreme Court had directly addressed government displays of the Ten Commandments only once before this term's rulings. In 1980, it struck down a Kentucky law requiring the posting of the commandments in public schools. The state insisted it had a purely non-religious purpose and wished to emphasize the commandments' role as "the fundamental legal code of Western civilization and the common law of the United States."
But the Supreme Court said the Ten Commandments were "undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact."
"The commandments do not confine themselves to arguably secular matters," the court said. "Rather, the first part of the commandments concerns the religious duties of believers: Worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day."
Aside from the schools, the court has not banished religion from public areas. In 1989, it upheld the display of a menorah in Pittsburgh outside a city-county office building. The court explained that the menorah was placed with other symbols, notably a Christmas tree, emphasizing the season's diversity.
But in the same case, the court struck down a nativity scene placed on the central staircase in the county courthouse. Because it stood alone, the court said, "the county sends an unmistakable message that it supports and promotes the Christian praise to God that is the crèche's religious message."
The religious vs. secular test
For the past three decades, in deciding whether government actions amount to an official endorsement of a particular religious view, the Supreme Court has looked at whether they have a secular purpose that neither endorses nor disapproves of religion, have the effect of advancing or inhibiting religion, or entangle either government or religion in the affairs of the other.
For Justice O'Connor, the test has often come down to whether "a reasonable observer" would think the government was supporting a religious view.
Context can be everything. In upholding Nebraska's legislative prayer, the Supreme Court said it acted, "in light of the unambiguous and unbroken history of more than 200 years."
"There can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, an 'establishment' of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country," the court said.
That was the issue the court faced in deciding this term's Ten Commandments cases: Did the displays in Texas and Kentucky simply acknowledge widely-held beliefs that guided the founders? Or did they suggest a government endorsement of the religious statements the commandments contain?