July 2, 2005
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and Pulaski County Courthouses were lined with nine historical
documents of the same size.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 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
What these cases illustrate
is the supreme importance of selecting competent new Justices of
the Supreme Court.