Moses and a Sour Lemon

If you haven't deciphered the confusion on the two 10 Commandment decisions by the United States Supreme Court, you are not alone. The court wrote 137 pages in 12 different opinions by 7 of the 9 justices! Only Justice Ginsburg for the liberals and Justice Kennedy for the conservatives quietly agreed with the split decisions. So just what did the court say?

Move over Rudolph - The bottom line seems to be "context". When the context is historical then, at least on paper, all the Justice's appear happy. Like Justice O'Connor's now famous "reindeer rule" where a creche is appropriate if it is placed in context of secular and other religious symbols (Lynch v. Donnelly - cited frequently by the court) it appears that the 10 Commandments are ok if mixed in with other symbols -- but not if it appears the purpose behind the display was to promote religion over non-religion -- or if the action might appear to a reasonable observer (whoever that is) that the message unmistakably endorsed religion. Confused yet?

The sour fruit of Lemon - For those of you familiar with Establishment Clause cases you will no doubt recall the Lemon test which set forth a tripartite analysis of purpose - effect - and entanglement. The purpose had to be secular (not pervasively religious), the effect had to be to neither advance nor inhibit religion and the result could not involve excessive entanglement of church and state. Well as the old song goes, "Lemon tree very pretty and the lemon flower is sweet, but the fruit of the poor Lemon is impossible to eat." From the 137 pages written by the court it is fairly obvious that no one is happy with Lemon, many are making alternative suggestions, but no group has enough support to adopt their position or overrule Lemon. So where does that leave us?

O'Connor's reasonable observer. Justice O'Connor has long held to a "reasonable observer test" which she set forth in Lynch v. Donnelly (1984). The question is 'would a reasonable observer believe the state was endorsing religion?' (This "endorsement" test is a separate wrinkle interposed into the entanglement question). That test is obviously unworkable. How can anyone argue that intelligent mature men and women on the United States Supreme Court aren't reasonable and yet they sharply disagreed on the 10 Commandment question (5-4) in both opinions. Justice O'Connor herself argued that in Kentucky the history of the litigation revealed a clear religious motivation (purpose) on the part of the county board in Kentucky and no amount of later changes to add in other historical documents could change that. However, in Texas where no one seriously challenged the secular purpose of the 10 Commandments monument which has sat for 40 years on the capital grounds and the person who sued had walked by the monument for five years before suing, Justice O'Connor still sided with the minority in concluding her reasonable observer would find that offensive. With all due respect to Justice O'Connor there is no way of squaring her position in the two cases except for wanting to reach a predisposed position. That can hardly be considered an objective reasonable observer.

Breyer's Legal Judgment Test. Justice Breyer was the swing judge in the two cases. To his credit in following Justice O'Connor's logic he could not come to the factual conclusion that Texas was impermissably advancing religion. He criticized O'Connor for reaching a contrary conclusion. He also criticized the application of the reasonable observer standard as well as the test set forth in Lemon. "I see no test-related substitute for the exercise of legal judgment." He wrote. Because the Texas capitol grounds have 17 monuments and 21 historical markers which represent a diverse reflection of the ideals of Texans, he upheld that monument but not the Kentucky display. The history in Texas was long and in the legislative record devoid of predominanty religious purpose. In contrast he wrote that the history in Kentucky "indicates a governmental effort substantially to promote religion, not simply an effort primarily to reflect, historically, the secular impact of a religiously inspired document." Unfortunately for Justice Breyer, how can an objective "legal judgment" test be any different from the objective "personal judgment" he decried, particularly in light of his colleague Justice O'Connor's position.

Justice Souter's neutrality test. Justice Souter joined by Stevens and Ginsburg took the unusual position that the establishment clause required neutrality which they interpreted to mean that government could not favor religion over non-religion. In other words, government cannot in any way promote religion. As Justice Scalia strongly pointed out that disregards the history of our nation and many laws from relieving churches from paying property taxes to exemption for religious organizations from religious discrimination to releasing students for relgious instruction from school. That has never been the standard and would be a dangerous interpretation of neutrality principals generally applied in free exercise clause jurisprudence not establishment clause cases.

Justice Scalia's historical analysis. Whether one agrees or disagrees with Justice Scalia he is a brilliant man with an excellent grasp of history. He wrote a scathing dissent in the Kentucky case. "Why, one wonders, is not respect for the Ten Commandments a tolerable acknowledgment of beliefs widely held among the people of this country?" Historically he pointed out that there has been nothing wrong with promoting religion in general. It is impossible to take God out of the historical fabric of our society. Scalia quoted George Washington's farewell address where he stated: "reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle." For Scalia the 10 Commandments are an integral part of our historical and religious heritage which is why they can be found in locations all over Washington D.C. including four different places in the United States Supreme Court building. The three monotheistic faiths all believe Moses was given the tablets of the law and more than any one particular religion the Commandments stand for faith and law and the importance of each in society.

Justice Thomas's coercion test. "This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges and... return to the views of the Framers and adopt coercion as the touchtone for our Establishment Clause inquiry." Thomas wrote. It is refreshing to see a Justice argue against what is known as the 'incorporation doctrine' which is what applied the First Amendment to the states by way of the 14th Amendment. Thomas opined the court erred in applying the Establishment Clause to the States and then realizing that ship had sailed set out why he believed the emphasis of the clause was to prohibit forcing one to adhere to a particular belief. For him the mere passive presence of a religious symbol was not sufficient to invoke the Establishment Clause. In support he cited numerous ridiculous challenges around the country including a suit to eliminate a cross erected to honor WWI veterans on a rock in the Mojave Desert. As he said, "If a cross in the middle of a desert establishes a religion, then no religious observance is safe from challenge."

Justice Rehnquist - final opinion? Justice Rehnquist will likely announce his retirement and writing the opinion in the Texas 10 Commandments case may well be his last written opinion. Justice Rehnquist cut to the heart of the matter in his 12 page opinion. "Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause." Rehnquist refused to look at the ailing Lemon test but rather looked at history, our practices as a nation, the practical placement of the monument as part of a larger context and therefore far more passive than coercing students in a classroom to view the text, to reach a very practical conclusion. His sharp to the point writing and position will be missed.

In the end... The end result of the 137 pages was to show a deeply divided court in Establishment Clause issues. This confusion and division will continue forward into other cases and arenas which may profoundly effect the voice of religion in the American Marketplace of Ideas. At the end of the day, Christians know the command of the Commandments: "Thou shalt have no other gods before me". Our citizenship is not of this world and we serve a jealous God who will call to himself those who love him and keep his commandments!