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A bitterly divided Supreme Court last week upheld one Ten Commandments display in Texas and struck down two others in Kentucky on First Amendment grounds, giving both sides in the rancorous church-state debate something to applaud and attack. The decisions in Van Orden v. Perry and McCreary County v. ACLU came on the day of the final sitting of the Supreme Court term, along with other major rulings on the copyright implications of online file-sharing and on the regulatory regime for cable modem service. The justices also declined to review two cases in which journalists Matt Cooper of Time magazine and Judith Miller of The New York Times argued they had a right to refuse to disclose their confidential sources before a grand jury. The Court recessed without Chief Justice William Rehnquist announcing retirement plans. However, Justice Sandra Day O’Connor announced her retirement on July 1. Without fanfare, Rehnquist presided over what could be the final Court session of his 33-year Supreme Court tenure. His voice was hoarse and raspy, the result of a tracheotomy he received during treatment for thyroid cancer. But he appeared to be in good spirits. As he summarized his own majority opinion in one of the Ten Commandments cases, and mentioned the separate concurrences and dissents written by six other justices, he quipped, “I didn’t know we had that many people on our Court.” The Ten Commandments rulings, even though mixed, seemed likely to increase the stakes for the fight over a new Supreme Court nominee. The religious right has made the Court’s church-state rulings a battle cry. “That the Ten Commandments would be viewed unconstitutional is an insult to the Constitution,” says Mathew Staver, president of Liberty Counsel, who argued unsuccessfully on behalf of the Kentucky displays. “We need judges who understand the rule of law and who respect the Constitution.” One of the goals of religious conservatives in the cases was to encourage the high court to abandon the so-called Lemon test, which is based on the 1972 case Lemon v. Kurtzman. That standard has been used to strike down too many religious accommodations, some religious groups say, but it appeared to survive last week’s decisions. The Court disapproved of the Kentucky courthouse displays in the McCreary County decision because of the “religious purpose” of the officials who put them up. But in Van Orden, the disputed Ten Commandments monument on the grounds of the state capitol in Austin, Texas, was found acceptable by a different 5-4 majority because it stood among many other nonreligious memorials and because it had gone unchallenged for more than 40 years. “Context is everything,” says Duke University law professor Erwin Chemerinsky, who argued against the Texas display and lost. The divisions among the justices over the issue were apparent after Justice David Souter announced the McCreary County ruling from the bench. Justice Antonin Scalia, who sits next to Souter, read extensively from his angry dissent. He recalled the night of Sept. 11, 2001, when President George W. Bush ended his remarks to the nation with “God bless America.” At the time, Scalia was in Italy for a conference, at which a fellow judge — from an unnamed European nation — lamented that in his country, invoking God’s name would be “absolutely forbidden.” Added Scalia, “That is one model of the relationship between church and state. . . . This is not, and never was, the model adopted by America.” Scalia said the majority had repudiated the history of the nation, whose officials have acknowledged God in myriad ways. “With all of this reality and much more,” Scalia said, “how can the Court possibly assert that the First Amendment mandates neutrality between religion and nonreligion? . . . Who says so?” But Souter said Scalia’s approach would “jettison decades” of high court precedent that calls for neutrality. “The touchstone for our analysis is the principle that the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion,” Souter wrote. For Souter and the other justices in the majority in the McCreary County case, the history behind the displays was crucial. When the American Civil Liberties Union challenged the displays, county officials modified them to add other documents, but they defiantly passed resolutions affirming the Ten Commandments’ central role in Kentucky life. The resolutions were not repealed until after the case was argued at the Supreme Court in March. In the next modification of the display, officials added several other more-secular documents, but Souter said that did not remove the tainted purpose. “Purpose needs to be taken seriously under the Establishment Clause and needs to be understood in light of context,” Souter wrote. Souter’s majority included Justice Sandra Day O’Connor, often a swing vote in church-state issues, along with Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer. O’Connor wrote that many Americans believe in the Ten Commandments, but she added, “We do not count heads before enforcing the First Amendment.” But in the Texas case, Breyer switched sides and voted in favor of the Austin monument. Breyer indicated he was swayed by the fact that the monument, donated to the state by the Fraternal Order of the Eagles in 1961, had gone unchallenged for more than 40 years. That longevity, he wrote, tends to prove that “few individuals, whatever their beliefs, are likely to have understood the monument as amounting, in any significant way, to a government effort to favor a particular religious sect.” Rehnquist, writing for a four-justice plurality, said the Texas monument should stand even though the Ten Commandments are religious. “Texas has treated her Capitol grounds monuments as representing the several strands in the State’s political and legal history,” Rehnquist wrote. “The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government.” The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, says that “This is a mixed verdict, but on balance it’s a win for separation of religion and government.” Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, which opposed the displays, says, “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 [last week].” ACLU Legal Director Stephen Shapiro says, “A majority of the Supreme Court in both cases has now clearly reaffirmed the principle that government may not promote a religious message through its display of the Ten Commandments.” On the other side, Jay Sekulow, chief counsel of the American Center for Law and Justice, says, “It is very encouraging that the Supreme Court understands the historical and legal significance of displaying the Ten Commandments, and moved to protect thousands of monuments now in place across America.” But the Kentucky ruling, Sekulow said, “is likely to create more questions and confusion in this area of church-state law.” Tony Mauro can be contacted at [email protected].

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