Ten Commandment Cases

On the final day of it’s 2004 session the Supreme Court handed down it’s much anticipated decisions in two cases regarding the constitutionality of public displays of the ten commandments on government grounds. In McCreary County v. ACLU Kentucky the court ruled 5-4 that such a display in a county courthouse violated the Establishment Clause of the 1st Amendment, while in Van Orden v. Perry the court ruled, also in a 5-4 decision, that a similar display on the grounds of the Texas State Capitol did not violate the 1st Amendment’s Establishment Clause. The swing judge in the two cases was Justice Breyer.

Today’s seemingly contradictory rulings are the fruits of it’s inability or refusal to return to the original meaning of "establishment" in the Establishment Clause, which can easily be determined by simply reading the clause’s actual text, which reads: "Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof". In other words, congress is constitutionally prohibited from passing a law that endorses a specific religion or that coerces the people to in some way support a certain religion, through financial contributions or other means. Congress is also prohibited from enacting any measures that would prevent the people from freely practicing the religion of their choice. The text of the clause clearly doesn’t prohibit the placement of a monument or display such as the ten commandments on government property, for a monument or a display is not a law and it certainly doesn’t prevent anyone from freely practicing religion as they see fit.

When the court strays away from the original meaning of the constitution like this it commits itself to passing judgements in areas where it has no business or qualification to. By ruling that certain monuments and displays constitute state establishment of religion, the court establishes itself, as Justice Thomas put it, as a "theological commission", passing judgement on the religious meaning and significance of each and every symbol, monument, display, etc. that exists on any piece of public ground in the nation. To do this is an exercise in futility, for entirely different people will attach entirely different meanings and significance to one single display. Furthermore, as Justice Thomas brilliantly pointed out in his concurrence in Perry, applying such a test, "fails to capture completely the honest and deeply felt offense he (the nonadherent) takes from the government conduct. For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith." No matter what decision a court makes in a situation like this, either leaving or removing such a monument, they are going to inevitably offend someone.

The court’s two decisions today also fail to apply any cohesive precedent or jurisprudential principle to be used on similar cases in the future. Without any clear definition of the Establishment Clause and it’s meaning, Justice Thomas aptly pointed out that such cases will inevitably be decided by "judicial predilections". If the court had simply followed the meaning of the Establishment Clause than it would have substantiated a precedent lower courts and future Supreme Courts could clearly follow. Instead, by distorting and stretching the meaning of the constitution the court has once again raised more issues than it has settled.