July 2, 2005

Column #1,244

                     Incoherence at the Supreme Court                              

     The U.S. Supreme Court, on the same day last week, declared that a display of the Ten Commandments was both constitutional on a monument outside the Texas state Capitol - and unconstitutional in a framed display inside two Kentucky courthouses.

     This is massive incoherence in the extreme.

     What is even more stunning is that Justice David Souter wrote both opinions!  He could not agree with himself. 

     I think the confused man should resign, and allow the President to appoint someone who can agree with himself on the same day. He appears to be afflicted with legal schizophrenia.

     How are these rulings to be of any help to those who would like to display the Ten Commandments and not provoke an expensive law suit by the ACLU?

     The Court seemed to forget that it presides under a display of Moses and the Ten Commandments. And symbols of the Ten Commandments "adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom." 

     Says who? The U.S. Supreme Court in supporting a six foot high Ten Commandments monument outside the Texas Capitol, issued on the same day.

     The logical result of the twin ruling is two-fold. "It will lead to further uncertainty and further litigation," declares Jared Leland, Legal Counsel of the Becket Fund for Religious Liberty, which filed a brief in support of both displays. "The ACLU will continue to litigate that the Ten Commandments are unconstitutional, citing the Kentucky case, and the other side will argue they are constitutional, citing the Texas case."

     In the Texas case, "Van Orden v. Perry," the high court ruled 5-4 that the Ten Commandments on the Capital Grounds, placed among 17 other monuments in a 22-acre park, was a tribute to the nation's religious and legal heritage and did not constitute government endorsement of religion.

     What made the Kentucky case different? Ostensibly, nothing.

     The walls of the McCreary and Pulaski County Courthouses were lined with nine historical documents of the same size. Entitled "The Foundations of American Law and Government," the display featured the Magna Carta, the Declaration of Independence, the Bill of Rights, the Star Spangled Banner, the Mayflower Compact of 1620, a picture of Lady Justice, the U.S. National Motto, "In God We Trust," the preamble to the Kentucky Constitution and the Ten Commandments.

     "When the Ten Commandments appear alongside other documents of secular significance in a display devoted to the foundations of American law and government, the context communicates that the Ten Commandments are included, not to teach their binding nature as religious text, but to show their unique contribution to the development of the legal system," argued Justice Antonin Scalia in a dissent for the minority.

     However, the majority noted that the counties originally posted only the Ten Commandments, which grew into the broader display of historical documents only after litigation. The claim by the counties that the displays had a secular purpose "was an apparent sham," wrote Souter. "Reasonable observers have reasonable memories."

     The Court tries to dispel the impression that its decision will require governments across the country to sandblast the Ten Commandments starting in its own chambers. The constitutional problem, the Court states, is with the counties PURPOSE in erecting the displays, not the displays themselves.

     "Displays erected in silence...are permissible, while those hung after discussion and debate are deemed unconstitutional," snapped Scalia.

     More importantly, he notes that the founding fathers did not try to exclude religion from the public forum. Indeed, George Washington added to the prescribed Presidential oath in the Constitution, "so help me God." The First Congress began the practice of beginning its legislative sessions with prayer. 

     "The same week that Congress submitted the Establishment Clause as part of the Bill of Rights, it enacted legislation providing for paid chaplains in the House and Senate," said Scalia. "The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim `a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts, the many and signal favours of Almighty God.'"

     Even if the original display had a religious motivation, what religion did it help establish?

     Christianity, Judaism and the Muslim faith all honor the Ten Commandments.

     And if that was offensive to atheists or Hindus, the counties clearly secularized the display by adding the Magna Carta, Declaration of Independence and other historical documents.

     What these cases illustrate is the supreme importance of selecting competent new Justices of the Supreme Court.