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A split on Commandments

THE BALTIMORE SUN

WASHINGTON - A 6-foot-high Ten Commandments monument near the Texas state Capitol can stay, but framed copies displayed with a hodgepodge collection of historical documents in two Kentucky courthouses must go, the U.S. Supreme Court said yesterday as it searched for middle ground on the politically charged issue of religious displays on government property.

The court said generally that such postings are allowed under the Constitution, but only in settings where it is clear that the government is not promoting religion - a case-by-case balancing act that seemed certain to invite a string of challenges.

Advocates on both sides said the pair of narrow, 5-4 decisions underscored the importance of the court's makeup, coming on the same day that Chief Justice William H. Rehnquist was watched closely for any sign that he intends to retire.

Rehnquist, who is 80 and has thyroid cancer, did not tip his hand as the court delivered its final rulings of the term. He wrote the court's majority decision on the Texas monument and, after announcing the fractured breakdown of votes from the bench yesterday morning, drew laughs from the packed courtroom by dryly remarking: "I didn't know we had that many people on our court."

As is customary, Rehnquist then thanked the court's employees for their work during the past year and adjourned court for its lengthy summer recess without a word about his future plans. A retirement announcement by any of the justices still could come in a written release.

His voice raspy and faint, Rehnquist did not elaborate on the Texas decision from the bench. But in the majority opinion, he said that "passive" Ten Commandment monuments such as the 40-year-old display in Austin - one of 17 monuments and memorials on the Capitol grounds - do not violate the constitutional ban on state establishment of religion under the First Amendment.

"Of course, the Ten Commandments are religious - they were so viewed at their inception and so remain," Rehnquist wrote. But, he added: "Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause."

No side could claim total victory in the court's first rulings on Ten Commandment postings in 25 years. An attorney who represented the Kentucky counties that were told to take down their displays said the decisions failed to fully recognize the importance of the Ten Commandments in secular American life.

"This battle is far from over," said Matthew D. Straver, president and general counsel for the Liberty Counsel, a conservative legal group based in Florida that stepped into the Kentucky case. "The court should recognize the Ten Commandments are more than a historic relic. ... We need judges who understand the rule of law and who respect the Constitution."

The Rev. Barry W. Lynn, executive director of the group Americans United, which advocates for strict separation of church and state, called the two rulings a "mixed verdict."

"The court rejected calls by religious right legal groups to give government an unfettered right to display religious symbols," Lynn said. "America is a diverse country and our government should not send the message that some faiths are preferred over others."

The rulings came from a splintered court. Rehnquist was joined in the majority decision in the Texas case by the court's most conservative members, Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy. Justice Stephen G. Breyer, who typically votes with the court's more liberal members, cast the deciding fifth vote that allowed the granite monument to remain on the Capitol grounds in Texas.

Writing his own concurring opinion, Breyer called it a "borderline case" and an example of how context and history must be considered for each display that is challenged.

The case-by-case conclusion was evident in the related case from Kentucky. In another 5-4 decision, led by its liberal members, the court said that framed displays at two local courthouses in Kentucky were plainly intended to promote religion and should be barred.

Justice Sandra Day O'Connor, a moderate conservative, voted against allowing the Ten Commandments displays in both cases. Writing a concurring opinion in the Kentucky decision, she said: "It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment.

"At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travail, while allowing private religious exercise to flourish," O'Connor wrote.

"Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"

Also voting to strike down the Kentucky courthouse displays were Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Breyer.

In an incredulous dissent delivered from the bench, Scalia sharply questioned how the majority could conclude that the First Amendment mandated government neutrality on religious issues.

"Who says so?" Scalia said. "Surely not the words of the Constitution. Surely not the history and traditions that reflect our society's constant understanding of those words."

Another of the court's most conservative members, Thomas, wrote in the Texas case that the court's only test in evaluating such issues of public religious displays should be whether there is any coercion on the part of government.

Thomas noted that in the Texas case, the man who challenged the display - a homeless one-time lawyer named Thomas Van Orden - was free to ignore the monument altogether.

"He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life," Thomas wrote. "The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause."

The court's last ruling on Ten Commandments came in 1980, when it struck down a Kentucky law requiring displays in all of the state's public classrooms. But the court's broader history on religion and public life is more nuanced. The court, for instance, has allowed prayer to mark the start of proceedings in legislative bodies. It has allowed, in some instances, city-sponsored Nativity scenes at Christmas. But it also has banned as unduly coercive benedictions held at public school graduations.

Writing for the majority in the Kentucky case, Souter said that the court's decision did not mean that a sacred text can never be integrated into a government display on the law, for instance, or American history. The majority opinion in the Texas case used that rationale to allow that Ten Commandment monument - donated to the state by the Fraternal Order of Eagles in 1961 - to remain as part of a museum-like outdoor display that includes a replica of the Statue of Liberty and a tribute to black legislators.

By contrast in Kentucky, local officials in McCreary and Pulaksi counties hung framed copies of the Ten Commandments, then later added a collection of other historical documents when they came under fire by some local residents and the Kentucky chapter of the American Civil Liberties Union sued.

The amended collection was described as a Foundations Display and includes a copy of the Mayflower Compact, the lyrics to The Star-Spangled Banner and a picture of Lady Justice.

Souter said that the tweaking of the display amounted to a litigation tactic and did not obscure the display's religious intent.

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