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Breyer casts decisive vote on religious displays

In a nutshell, the effect of the Supreme Court’s two Ten Commandments rulings on Monday was to say “old religious displays are OK; new ones are not.”
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Justice Stephen Breyer was the decisive swing vote in the Ten Commandments cases.Chip Somodevilla / Getty Images file
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What do the two apparently contradictory decisions on displays of the Ten Commandments announced Monday by the Supreme Court mean for religious expression in America?

In a nutshell, the effect of the court’s two rulings was to say, “Old religious displays are OK; new ones are not.”

By the barest plurality, the court approved historical exhibits of the Ten Commandments on public property, displays that put the Decalogue in “a museum-like setting,” as Texas attorney general Greg Abbott repeatedly described it when the court heard oral arguments in Van Orden v. Perry on March 2.

Perhaps the best way to look at the cases is through the eyes of Justice Stephen Breyer, the swing vote in the Texas case, in which the court by a 5-4 vote allowed the state of Texas to continue displaying on the grounds of the state capitol in Austin a monument with the Ten Commandments engraved on it.

As long as the display is pretty old and as long as almost no one has objected to it over the 40 years it has stood on the capitol grounds, then it passes muster, Breyer said.

How old is old?
He did not answer the question of “how old is old?” In other words, how long would a monument engraved with the Decalogue have to have been displayed — 10 years? 15 years? — in order to achieve protected status?

As a result of Monday’s ruling, religious displays will be allowed on state property under a "grandfather clause," as a respectful nod to the past.

A moral message is permissible, said Breyer, and a display of the Ten Commandments does send one.

But in Breyer’s view — and he is the rule-maker by default because he was the deciding vote in this case — the Texas display "conveys a predominantly secular message" and therefore is permissible.

One important factor for Breyer: The Austin Ten Commandments monument was in a park with other historical monuments around it. “The setting does not readily lend itself to meditation or any other religious activity,” Breyer decided.

Hinting at practical political consequences, Breyer also worried that if the court banned long-standing displays of the Ten Commandments, it might spark public outrage, “the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”

Banned in Kentucky courthouses
In the companion case, McCreary County v. American Civil Liberties Union, a five-justice majority, including Breyer, essentially banned new affirmations of a state’s or county’s belief that our laws come from God.

In the McCreary County case, officials in two counties in Kentucky in 1999 posted Ten Commandments displays in their courthouses.

After the American Civil Liberties Union sued, a federal judge ordered their removal.

The county officials responded by posting a new display with the Decalogue, alongside copies of the Magna Carta, the lyrics of “The Star Spangled Banner” and other documents.

Secular enough for the high court? No, according to the majority opinion by Justice David Souter.

The Kentucky displays had “a predominantly religious purpose” and therefore ran afoul of the principle, expressed in previous Supreme Court cases, that government officials must be neutral in religious matters.

Souter worried in his decision about the division in America between religious people and secular people.

“The divisiveness of religion in current public life is inescapable,” he said. “This is no time to deny the prudence of understanding the Establishment Clause (of the First Amendment) to require the Government to stay neutral on religious belief….”

Emphasis on the past
In his opinion for the court in the Texas case, Chief Justice William Rehnquist said the justices must be two-faced when they decide cases involving religion.

“One face looks to the past in acknowledgment of our Nation’s heritage, while the other looks to the present in demanding a separation between church and state,” Rehnquist said. He said the court must “neither abdicate our responsibility to maintain a division between church and state nor evince hostility to religion by disabling the government from in some ways recognizing our religious heritage.”

As with Breyer, the emphasis in Rehnquist’s opinion was on the past — “acknowledgment of our Nation’s heritage.”

What Justice Antonin Scalia wanted — and could not get from most of his colleagues — was a robust statement that religion is not merely part of America’s heritage but a vibrant part of American society and government today.

Joining Scalia in Monday’s Ten Commandments decisions was Clarence Thomas.

In his view, when the Establishment Clause of the First Amendment says, “Congress shall make no law respecting an establishment of religion,” it means exactly that and nothing more than that. Congress “shall make no law,” but the states may do so, if they choose to.

“This case would be easy,” Thomas said, if the court would simply “return to the original meaning of the (Establishment) Clause.”

Thomas lamented that the court’s Texas ruling “leaves courts, governments, and believers and nonbelievers alike confused....”

Those looking for the court to settle once and for all the place that religious expression can have in American society will, of course, be disappointed by what Breyer came up with.

No finality from Breyer
But Breyer reminded Americans that judges decide specific cases on particular facts more often than they issue sweeping constitutional principles that resolve controversies for all time.

If you want finality, you won’t get it, Breyer said. “The Court has found no single mechanical formula that can accurately draw the constitutional line in every case,” he said.

So Monday’s rulings are likely to spawn a new round of litigation as lower court judges try to figure out whether government officials in cities and towns across the nation intended to send “a predominantly secular message” with a Ten Commandments display, a high school graduation prayer or a Christmas-Chanukah-Santa Claus scene.

And in the end the decisions will be made not by legislatures, mayors and other elected officials, but by Breyer and whoever may sit on the court in the years ahead.