When the Supreme Court today handed down split decisions on how and whether the ten commandments can be displayed it also handed down something else: a foreshadowing of a monumental battle royal over Supreme Court nominations that could eventually make the word “nuclear” as in “nuclear option” seem like “bug spray.”
The reason: the court reached a decision that left it (and future courts) plenty of wiggle room on this issue in the future. But its ruling also underscored the fragility of the court’s political center. It won’t be difficult to tip that center by appointing more conservative judges — and President George Bush may have two to three to fill by the time his term is over…potentially making him one of the most influential Presidents in history.
So the importance of today’s court action goes beyond a ruling on a controversial subject. CNN reports:
A sharply divided Supreme Court on Monday upheld the constitutionality of displaying the Ten Commandments on government land, but drew the line on displays inside courthouses, saying they violated the doctrine of separation of church and state.
Sending dual signals in ruling on this issue for the first time in a quarter-century, the high court said that displays of the Ten Commandments — like in their own courtroom frieze — are not inherently unconstitutional. But each exhibit demands scrutiny to determine whether it goes too far in amounting to a governmental promotion of religion, the court said in a case involving Kentucky courthouse exhibits.
In effect, the court said it was taking the position that issues of Ten Commandments displays in courthouses should be resolved on a case-by-case basis.
In that 5-4 ruling and another decision involving the positioning of a 6-foot granite monument of the Ten Commandments on the grounds of the Texas Capitol, Justice Sandra Day O’Connor was the swing vote. The second ruling, likewise, was by a 5-4 margin.
Justice Antonin Scalia released a stinging dissent in the courthouse case, declaring, “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.”
The justices voting on the prevailing side in the Kentucky case left themselves legal wiggle room, saying that some displays inside courthouses would be permissible if they’re portrayed neutrally in order to honor the nation’s legal history.
But framed copies in two Kentucky courthouses went too far in endorsing religion, the court held. Those courthouse displays are unconstitutional, the justices said, because their religious content is overemphasized.
In contrast, a 6-foot-granite monument on the grounds of the Texas Capitol — one of 17 historical displays on the 22-acre lot — was determined to be a legitimate tribute to the nation’s legal and religious history.
Excerpts from the ruling can be found HERE.
In short: the court ruled that what mattered was intent – motivation — and the context in which it was being displayed. This is indeed a “nuance,” the kind of nuance that would disappear if the court tilts more to the right (likely) or more to the left (highly unlikely for some time to come).
Even reaction to the rulings was mixed:
- A separation of church and state advocate said the ruling was a net gain for the separation concept, according to the AP:”Barry Lynn, the executive director for Americans United for Separation of Church and State, says the rulings are more of a victory than a defeat. He says they make clear that government buildings aren’t churches and should not be decorated as such. But he admits being disappointed that the court stopped short of drawing a clean line and banning all displays on government property.”
- But family attorneys say it settles little or blast the ruling. For instance, AgapePress story has this quote:”Steve Crampton, chief counsel at the American Family Association Center for Law & Policy, is strongly critical of the Kentucky decision, saying it “smacks of judicial tyranny” to second-guess the “hidden purposes” of the commissioners who placed the displays. “The [Supreme] Court has tightened its grip on every aspect of our lives,” he says. “These five un-elected people in black robes are not declaring law; they are arbitrarily setting social policy for the entire country.”
Meanwhile, theChristian Science Monitor sees it this way:
In a major showdown over the presentation of religious symbols and sacred text on public property, the US Supreme Court has made it somewhat easier for government officials to justify displays like the Ten Commandments.
But at the same time, the nation’s highest court put officials on notice that their motives must be clearly secular for such displays to pass constitutional muster…..
Some legal scholars hold the view that the establishment clause requires a strict separation between church and state. They say religion is best protected by minimizing potential government entanglements. Others say strict enforcement of separation can force government into a posture of hostility toward religion and the religious.
The high court has carved out a middle position in this ongoing and increasingly heated debate.
Nonetheless, analysts say the two decisions and the sharp split within the court set the stage for more church-state litigation with increasing focus on the context and history of the display. But ultimately the decisions may provide a road map for officials seeking to defend such displays.
“It leaves us litigating each and every one of these cases individually,” says Douglas Laycock, a church-state expert and law professor at the University of Texas Law School. “Everyone can manipulate the facts,” he says. “The lesson for state governments is, disguise your purpose.”
Erwin Chemerinsky, a Duke University Law School professor who argued the Texas case, said future cases will depend on context and history. If the display is part of a broad presentation of sources of law such as exists at the US Supreme Court, the court will probably uphold it, he says. “But the court is always going to be looking at the purpose of the government action, the context, and history.”
But will it? A new majority, voting in the wake of several Supreme Court vacancies and new appointments, may see things a bit differently. That’s why both the right and left are gearing up for a no-holds-barred political donnybrook in which it’s not entirely unlikely that the “nuclear option” on judicial filibusters comes back from the compromise grave.
SOME ADDITIONAL READING:
Scotus Blog (focuses on Supreme Court)
TalkLeft (legal oriented blog) has a detailed open threat.
The Volokh Conspiracy (excellent legal blog with team of center-to-right lawyers/writers)
Pastor Mark Daniels argues Christians should welcome the Supreme Court rulings.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.