A divided United States Supreme Court on Monday ruled that some, but not all, displays of the Ten Commandments on public property are constitutional.

Sparked by legal battles of former Alabama Chief Justice Roy Moore, public displays of the Ten Commandments have become a defining issue in America’s so-called “culture wars.”

Rather than resolving the controversy over whether government can display the Ten Commandments, the split rulings mean courts must consider such disputes case-by-case to determine whether their intent is to advance religion.

In separate 5-4 decisions, the high court said a 44-year-old monument on the grounds of the Texas state Capitol bearing the Ten Commandments does not violate the separation of church and state, because it had a secular purpose.

In the other Ten Commandments case, however, the justices found that recent wall hangings of the Ten Commandments inside two Kentucky courthouses amounted to government endorsement of a religion, which is banned by the First Amendment.

“Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause,” Chief Justice William Rehnquist wrote in a majority opinion in Van Orden v. Perry.

The case involved a 6-foot granite monument of the Ten Commandments placed outside the Texas Capitol by the Fraternal Order of Eagles in 1961.

The Supreme Court said the state had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency, and that a reasonable observer would not perceive the monument, placed among 21 others on the Capitol grounds, as endorsing religion.

In the Kentucky case, McCreary County v. American Civil Liberties Union of Kentucky, however,
a majority found that executives in two counties violated the Establishment Clause by posting a version of the Ten Commandments on the walls of their courthouses, because their intent was to promote Christianity.

Writing for the majority, Justice David Souter noted the First Amendment has not one but two clauses tied to religion. The first bans the establishment of religion, and the second forbids any prohibition of the “free exercise thereof.”

“Sometimes, the two clauses compete,” Souter said. “Spending government money on the clergy looks like establishing religion, but if the government cannot pay for military chaplains a good many soldiers and sailors would be kept from the opportunity to exercise their chosen religions.”

“Given the variety of interpretative problems,” Souter said, “the principle of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause.”

Rehnquist said the two cases, “Janus-like, point in two directions in applying the Establishment Clause. One face looks toward the strong role played by religion and religious traditions throughout our nation’s history. The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.”

Barry Lynn of Americans United for the Separation of Church and State called it a “mixed verdict” but said “on balance it’s a win for separation of religion and government.”

“Public buildings belong to everyone,” Lynn said. “America is a diverse country and our government should not send the message that some faiths are preferred over others.”

Steven Shapiro, legal director of the American Civil Liberties Union, said the Kentucky ruling “is consistent with what the court has ruled before. Our Constitution’s ban on government entanglement with religion is good for both government and religion. It keeps religion free, and it allows government to represent us all.”

While disagreeing with the court’s decision that the Texas monument can stay, Shapiro took comfort that “a majority of the Supreme Court in both cases has now clearly reaffirmed the principle that government may not promote a religious message through its display of the Ten Commandments.”

Supporters of displaying the Ten Commandments also viewed the rulings as a mixed bag.

Mathew Staver of Liberty Counsel, which represented the counties in the Kentucky case, termed the Texas ruling “historic” and predicted it “will have a significant impact on the future court decisions regarding the interaction between church and state.” He said the “battle is far from over” with regard to displaying the Ten Commandments inside courthouses.

Gary Cass of the Center for Reclaiming America, another pro-Ten Commandments group, meanwhile, criticized the court for “judicial schizophrenia” on the issue of government sponsorship of religious messages.

John Whitehead of The Rutherford Institute said he was “pleased that the Supreme Court has recognized the role that religion has played in our nation’s history” in the Texas case but lamented the ruling in the Kentucky case for “the utter lack of direction by the court in terms of their Establishment Clause test.”

Tony Perkins of the Family Research Council called the ruling against Ten Commandments displays on public property “lamentable.”

“This ruling by the Supreme Court is not only denigrating to our culture but it undermines the very laws we already have in place,” Perkins said. “Forbidding the Ten Commandments opens the door to hostility toward religion, which is contrary to the Free Exercise clause of the First Amendment.”

According to a study last year by the Pew Forum on Religion & Public Life, seven in 10 Americans said they believe it is proper to display the Ten Commandments in a government building.

Bob Allen is managing editor of EthicsDaily.com.

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