Supreme Contradiction

Peter W. Schramm

June 1, 2005

Here’s a quick test: Which of the following is constitutional, a six-foot-tall stone monolith carved with the Ten Commandments showcased at a state capitol, or a historical display consisting of nine documents on framed paper—including the Declaration of Independence, the Magna Carta, and the Ten Commandments—exhibited at a courthouse? If you said the historical display, you’re wrong—at least according to a pair of Supreme Court opinions issued Monday. This constitutional contradiction isn’t just bad law; but is the latest example of why the anticipated Supreme Court vacancies are so important.

Admittedly, the Ten Commandment decisions start from shaky footing. The Supreme Court’s religion clause jurisprudence has long been a bit confused. According to the Court, you can open Congress and official government ceremonies with prayer, but you can’t have prayer at a high school graduation ceremony, or even a student-led prayer at a public school football game. Similarly, a nativity scene may be forbidden if it is prominently displayed on public property, but may be just fine if it is flanked by Frosty the Snowman. Yet these disparities seem downright coherent compared with the contradictions and errors pervading the Court’s most recent pair of decisions.

First, the Court couldn’t even decide which test to use. In a case involving the display of historical documents including the Ten Commandments in McCreary County, Kentucky, the Court chose to use the Lemon test—which has been criticized by a majority of the justices in other cases—to strike down the display. By contrast, in reviewing the stone monument in Texas, the Court found that the Lemon test doesn’t apply, and chose to uphold the validity of the display. The Supreme Court has been known to alter its own legal standards from time-to-time, but generally it can keep them straight for at least a day. This inconsistency provides poor guidance to lower courts, including our own federal circuit here in Ohio from which the Kentucky case arose, which must now divine which test to apply. Inevitably, this will mean that judges will follow the one clear precedent from the Supreme Court’s cases: apply whichever standard matches your preferred policy outcome. The Supreme Court’s decisions will therefore serve as an invitation to outcome-based activism.

Second, the Court asserted that the legislators in Kentucky demonstrated an impermissible purpose because they first displayed the Ten Commandments by themselves, and later, after being sued, included the Decalogue in a larger display of foundational documents which explained how the Ten Commandments have influenced American law and government. Yet it was perfectly permissible for Texas to display their stone monument for the overt purpose of instructing youth in the ethics of the Decalogue without including any other secular items in the display. Legislators in Kentucky are left to ponder whether they were better off leaving the framed display by itself, as well as why the Supreme Court foreclosed them from changing the display to better comply with the Court’s own prior decisions approving of religious items included as part of larger, secular displays.

Finally, and perhaps most importantly, the Court offered a confused view of religion’s role in our nation’s history. Justice Souter, writing for the Court in the Kentucky decision, went so far as to dispute the special place that monotheism has in our nation’s history and constitutional tradition in his attempt to disallow any distinction in government recognition between religion and non-religion. This revisionism fails to recognize the fundamental role that the Judeo-Christian tradition—and the Decalogue in particular—played in formulating the laws of this early nation. Indeed, 12 of the 13 original colonies simply chose to codify the Ten Commandments as law. Justice Souter’s approach not only requires us to remove the Ten Commandments from the Kentucky courthouse walls; it requires us to ignore our common heritage.

Not every justice offered so misguided a view of what the Constitution requires. Chief Justice Rehnquist soundly noted in his opinion for the court upholding the Texas monument that "[s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause." In so doing, Rehnquist’s opinion accords with the basic principle the Ashbrook Center argued in our amicus curiae brief to the Court: the Constitution does not require us to sandblast monuments which pay homage to those documents and ideas which were fundamental to our founding, and to the Constitution’s own framing.

But such sensible jurisprudence is in short supply on the Supreme Court. Court watchers believe that Chief Justice Rehnquist will retire this summer, and Justice O’Connor, who voted against both displays, may also retire. The Court’s contradictory Ten Commandment decisions show just how closely balanced the Supreme Court is, and serve to remind of just how important the coming judicial confirmations will be.

Peter W. Schramm, the Executive Director of The John M. Ashbrook Center for Public Affairs at Ashland University, filed an amicus curiae brief with the United States Supreme Court defending the placement of the Ten Commandments in McCreary County v. ACLU.