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Left unsaid


WHEN IS IT acceptable to display the Ten Commandments on government property and when isn't it? That was one of the most contentious questions before the U.S. Supreme Court this term and the justices were narrowly but sharply divided on the issue. By 5-4 margins, the court found the display unacceptable in two Kentucky courthouses, but acceptable on the grounds of the Texas state capitol building in Austin. The difference hinged on what the justices considered the overall purpose and context of the displays. In Kentucky, the purpose was deemed religious, but not in Texas. At a time when religious expression is increasingly being infused into secular government, the rulings take a common sense approach, but the shifting majorities will undoubtedly encourage some to keep pushing the line while others try to hold it.

In the Kentucky case, lawmakers in two counties were pretty obvious in their efforts, starting in 1999, to post the commandments in county courthouses. The American Civil Liberties Union challenged the displays as violating the First Amendment prohibition against establishment of religion. The court majority was suspicious of lawmakers' claims that the courthouse displays were meant to be educational because the commandments initially were not part of any broad historical review. The majority, led by Justice David Souter, found that the displays were unconstitutional because the purpose was religious, not secular.

The result in Texas was quite different. Justice Stephen Breyer, who found the Kentucky displays unacceptable, thought the Texas display, though a difficult borderline case, was sufficiently distinct to justify switching sides. Writing for the majority, Chief Justice William Rehnquist found that the Texas display, which has been on the capitol grounds for 40 years and is part of a larger display of 21 historical markers and 17 monuments, does not have a purely religious purpose and is, therefore, constitutional.

The tone of the various majority and dissenting opinions makes clear that sorting out religious purpose and context is a delicate balance. Even in the Kentucky case, the court did not say that a sacred text can never be integrated into a governmental display; one example cited is a frieze in the Supreme Court building itself that shows Moses handing down tablets with the commandments as part of a broad display of 18 lawgivers.

Thus the courts have to continue viewing displays of the commandments on government property on a case-by-case basis. Judicial vigilance against the creeping encroachment of religion into public life is critical, since this is an issue that won't go away.

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