|American Jewish Committee||Reform Movement||American Jewish Congress|
WASHINGTON - A divided U.S. Supreme Court ruled that putting framed copies of the Ten Commandments in county courthouses violated church-state separation, but it allowed a commandments monument in a larger display on a state Capitol grounds.
The two 5-4 rulings on the politically charged issue of displaying the Ten Commandments on government property came in a pair of cases regarded as the most important of the court term concerning constitutional separation of church and state.
In one decision, the high court ruled that Kentucky officials acted with a "predominantly religious purpose" when they posted framed copies of the Ten Commandments on the walls of courthouses in McCreary and Pulaski counties.
In the other decision, the high court upheld the large granite monument inscribed with the Ten Commandments on the Texas Capitol grounds as part of a display that included numerous other monuments and statutes.
Part of the distinction between the two rulings turned on the intent of government officials concerning the displays and whether they conveyed a mainly religious message.
A number of legal battles have taken place around the country in recent years over displays of the Ten Commandments on government property, dividing the public and producing conflicting rulings by U.S. appeals courts.
The Republican administration of President George W. Bush supported each of the latest displays. The Supreme Court last ruled on the issue in 1980 when it banned the posting of copies of the Ten Commandments in public school classrooms.
Justice Stephen Breyer, normally one of the court's more liberal members, provided a key swing vote in the two cases, joining the majority to strike down the Kentucky displays and then joining four of the court's conservatives to uphold the Texas monument.
Breyer said the Texas case differed from the Kentucky one where the history of the courthouse displays demonstrated "the substantially religious objectives" of those who put them up and that it had this effect on those who viewed them.
The two rulings produced 10 separate opinions that totalled about 140 pages. Justice Clarence Thomas, who strongly supported the displays, said the inconsistency between the two decisions would only compound the confusion over what was permissible.
In the Kentucky ruling, Justice David Souter said for the majority that state officials were not following the neutrality and church-state separation demanded by the framers of the Constitution.
"This is no time to turn our back on a principle of neutrality that has served freedom and liberty," he said from the bench in summarising the ruling for the court majority.
He said the Kentucky displays were different from the marble frieze by the ceiling of the Supreme Court courtroom that depicts Moses with a tablet representing the Ten Commandments. That one included 17 other lawgivers, he said.
Justice Antonin Scalia issued a blistering dissent that was joined by Chief Justice William Rehnquist and Justices Thomas and Anthony Kennedy.
Scalia cited the role of religion in U.S. history. He said presidents still conclude the presidential oath with the words "so help me God" and that U.S. coins bear the motto, "In God we trust."
In the Texas case, Rehnquist said for the majority that the state has treated the monuments on the capitol grounds as representing several strands in the state's political and legal history.
Including the Ten Commandments monument has a dual significance, partaking of both religion and government, he said, adding that it stood among 21 historical markers and 17 monuments surrounding the Texas State Capitol.
Reaction to the ruling was split.
"This is a mixed verdict, but on balance it's a win for separation of religion and government," said the Rev. Barry Lynn of the group Americans United for Separation of Church and State.
Supporters of the displays emphasized the Texas ruling.
"It is very encouraging that the Supreme Court ... moved to protect thousands of monuments now in place across America," said Jay Sekulow of the American Center for Law and Justice.
The American Jewish Committee applauded today's United States Supreme Court decision barring the public display of the Ten Commandments in courthouses. However, AJC was disappointed that the Court, in a separate case, did not bar such displays on public grounds.
"The High Court rightly held unconstitutional the state's religious purpose in displaying the Ten Commandments in courthouses," said Jeffrey Sinensky, AJC's general counsel, referring to the decision in McCreary County v. American Civil Liberties Union of Kentucky.
AJC filed a brief in McCreary with a coalition of Christian, Jewish and interfaith organizations, emphasizing that "when government attempts to rationalize its display of sacred texts by claiming secular purposes and secular effects, the inevitable tendency is to distort and desacralize the sacred text.'" The case involved the display of the Decalogue, surrounded by secular patriotic texts on county courthouse walls.
In Van Orden v. Perry, a case involving the display of a granite monument of the Decalogue on Texas State Capitol grounds, AJC asserted that "such displays violate the constitutional principle of separation of church and state, and send the message to non-adherents that they are outsiders in their own communities." AJC filed a brief in Van Orden with a coalition of Jewish organizations.
The Supreme Court, however, declined to rule that display unconstitutional.
AJC is disturbed that Justice Scalia, in his concurring opinion in Van Orden, indicated that "there is nothing unconstitutional in a State's favoring religion generally, honoring God through public prayer and acknowledgment, or, in a no proselytizing manner, venerating the Ten Commandments."
A staunch defender of church-state separation as the surest guarantor of religious liberty for all Americans, AJC filed in 1980 an amicus brief with the U.S. Supreme Court opposing the mandatory display of the Ten Commandments in Kentucky public schools. In that case, Stone v. Graham, the High Court recognized the religious nature of the Ten Commandments, stating: "The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of supposed secular purpose can blind us to that fact."
In two decisions regarding the constitutionality of displays of the Ten Commandments on government property, the U.S. Supreme Court ruled today in support of maintaining a longstanding protection against government endorsement of religion.
In McCreary County v. ACLU of KY, the Court rejected the so-called historically contextualized Ten Commandments displays in two county courthouses and a school district as motivated by a primarily religious purpose, concluding that they were a subterfuge for government endorsement of religion. In Van Orden v. Perry, although upholding a large monument of the Ten Commandments on the Texas Statehouse grounds, the majority of the Justices remained steadfastly committed to the notion that government cannot endorse a display found to convey a religious message. Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, issued the following statement responding to the decisions:
We applaud the Court's rejection of the Ten Commandments displays in McCreary County v. ACLU of KY. As Justice Souter argued for the 5-4 Court majority today, "When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment clause value of official religious neutrality. ... "
The Supreme Court's decision today provides an essential affirmation of government neutrality toward religion at a time when, as Justice Souter acknowledged, the religious community appears to be increasingly divided in American public life. In McCreary, Justice Souter articulated an eloquent and powerfully reasoned defense of the separation of church and state in America. Tellingly, he observed "The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate."
The McCreary opinion, however, remains very narrowly crafted and failed to draw a bright line test for displays of religious symbols on government property. We look forward, with some trepidation, to continuing litigation in the realm of public displays of religion. Now more than ever, the closely divided Court in this case underscores the paramount importance of any vacancies arising at the completion of this Court's term today.
While we certainly disagree with the Court's rationale upholding the Ten Commandments display in Van Orden as merely "secular," the Court's adherence to the notion that government should not endorse or oppose religion is an important reaffirmation of government neutrality towards religion as the touchstone of Supreme Court jurisprudence regarding the separation of church and state.
As Jews, the Ten Commandments are the fundamental ethical code on which we base our religious and moral beliefs. We believe that it is precisely because of the Commandments' signal religious value that they belong in our synagogues, religious schools, in our homes and in our hearts, rather than in courts, public schools, or other government institutions. Displaying an inherently religious symbol, such as the Ten Commandments, on public property is not only a clear and direct violation of the Establishment Clause, but also risks detracting from its powerful religious message.
As Justice O'Connor noted in her concurring opinion, the significance of the Ten Commandments may be profoundly religious for Jews and for millions of other Americans, but "We do not count heads before enforcing the First Amendment." We commend the Court's recognition of this important constitutional protection.
The Religious Action Center of Reform Judaism is the Washington office of the Union for Reform Judaism, whose more than 900 congregations across North America encompass 1.5 million Reform Jews, and the Central Conference of American Rabbis, whose membership includes more than 1,800 Reform rabbis.
Today's Supreme Court's confusing rulings, invalidating an official display of the Ten Commandments in Kentucky when it was surrounded by secular historical monuments in a Courthouse, but upholding an analogous display in the Texas capitol, offers the American people both a silver lining and a cloud. Although there is much reason to applaud the Court's reaffirmation of the constitutional requirement that all government actions touching upon religion have a substantial secular purpose, its failure to find such a sectarian purpose in the obvious and unavoidably religious nature of official display in Texas is troubling.
Paul S. Miller, AJCongress President, said, "The Court's split decision and the multiplicity of opinions in the Texas case appears to indicate that no firm constitutional rule has emerged to govern religious symbols cases. The unfortunate result will most likely be a proliferation of litigation over such displays until some constitutional center is reached."
Miller continued, "The Court's ringing reaffirmation of purpose analysis, and with it the continuing vitality of the landmark Establishment Clause decision in Lemon v. Kurtzman, is the potential silver lining. Unfortunately, without the bright line that we had sought from the Supreme Court, the purpose inquiry could be subverted by public officials disguising their motivations. "
"Moreover," Marc Stern, AJCongress General Counsel, said, "it is worthy of reflection that four Justices were prepared to reject wholesale the Court's sixty-year old commitment to a constitutional requirement that government express no official preference for religion over non-religion. The spectacularly successful American experiment in secular government survived today, but we are deeply troubled that today's decisions virtually invite further attacks on that experiment"
AJCongress had originally filed an amicus brief with the Supreme Court in support of Thomas Van Orden, contending that the Ten Commandments monument on Texas government property has the unconstitutional effect of endorsing religion, and more specifically, the values of Protestant Christianity. It also joined in a brief prepared by Professor Douglas Laycock for the Baptist Joint Committee, the American Jewish Committee, and others in arguing that the Kentucky display was also unconstitutional. Dissenting in the Texas case, Justice John Paul Stevens cited the American Jewish Congress brief.
The American Jewish Congress is a membership association of Jewish Americans, organized to defend Jewish interests at home and abroad, through public policy advocacy, in the courts, Congress, the executive branch and state and local governments. It also works overseas with others who are similarly engaged.