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Ten Commandments rulings leave both sides unsatisfied

WASHINGTON—In split rulings, the Supreme Court reached a Solomonic compromise Monday on government displays of the Ten Commandments that advocates on both sides of the issue decried as adding "mud to murky water."

The justices struck down displays in two Kentucky courthouses, saying their intent and purpose were explicitly religious and therefore at odds with constitutional protections against government-sponsored proselytizing.

But the court upheld a 44-year-old display on the Texas Capitol grounds, saying its history and context were sufficiently nonreligious to avoid conflict, no matter what its original purpose or intent.

The rulings, both 5-4 and accompanied by biting dissents, conform to the court's long history of confusing—and seemingly contradictory—rulings on church and state matters.

The justices have struck down prayer in public school classrooms, sporting events and graduation ceremonies, but have permitted public Nativity scenes, prayers at the beginnings of legislative sessions and the phrase "In God We Trust" on U.S. currency.

Monday's rulings leave both religious and secular advocates with a similarly unsatisfying answer to the question of where and how government can display Ten Commandments monuments: It depends.

"They're saying they'll make arbitrary, ad hoc determinations about these things," said Jared Leland, legal counsel for the Becket Fund for Religious Liberty, an advocacy group. "They're not relying on broad principle. It's just an additional clouding of the water."

Barry Lynn, the executive director of Americans United for Separation of Church and State, agreed that the court failed, even though his group pushed for a different outcome from the one Leland's group sought.

"It's very frustrating, and it will almost certainly lead to more lawsuits," Lynn said. "They had a chance to say definitively that governments can't own and operate religious symbols. That would have been a clean, simple line. I have no idea why they can't bring themselves to do that."

The rulings were announced on the last day of the court's term, amid rampant speculation that one of the justices might retire once the term ended. Chief Justice William H. Rehnquist, who's ill with thyroid cancer, has been the most intense focus of that speculation. But no announcement was made Monday about Rehnquist's plans.

Monday's Ten Commandments rulings placed the justices in the center of a contentious social debate.

The Supreme Court hadn't dealt with a case involving the Ten Commandments in a quarter-century. But as secular interests have challenged such displays in courthouses and other public spaces around the country, religious conservatives have tried to assert the country's Christian heritage.

Writing for the court in the Kentucky case, Justice David Souter said it was similar insistence on the part of officials in two counties that constitutionally doomed their Commandments displays.

The officials initially posted the Commandments, alone, in the courthouses, saying they were "the precedent legal code" for the state. After the displays were challenged in court, the officials changed them to include other historical documents and largely dropped their assertions about the religious roots of American law.

When the displays were challenged a second time, the officials changed them again by adding still more documents and said their purpose was to "educate" citizens about documents that played a significant role in law and government.

Souter said he found their initial intent overwhelming and impossible for the court to ignore.

"No reasonable observer could swallow the claim that the counties had cast off the object so unmistakable in the earlier displays," Souter wrote. "The reasonable observer could only think that the counties meant to emphasize and celebrate the Commandments' religious message."

Justices John Paul Stevens, Sandra Day O'Connor, Ruth Bader Ginsburg and Stephen Breyer joined Souter in the majority.

In a bitter dissent read from the bench, Justice Antonin Scalia assailed the court as misinterpreting constitutional protections against state-sponsored religion and inconsistently applying its own rules about church-and-state separation.

Acknowledging religion's contribution to the nation's legal heritage "partakes of a centuries-old tradition," wrote Scalia, whose opinion quoted James Madison and Thomas Jefferson and cited examples of George Washington and former Chief Justice John Marshall mixing public duty with religious messages.

"Display of the Ten Commandments is well within the mainstream of this practice of acknowledgement," Scalia wrote.

Rehnquist and Justices Anthony Kennedy and Clarence Thomas joined Scalia in dissent.

In the Texas case, Rehnquist, writing for the same four justices, found that the Commandments display on the state Capitol grounds passed constitutional muster. The monument is one of more than 40 mostly nonreligious exhibits and was donated by the Fraternal Order of Eagles in 1961 as part of a national effort to provide youth with a "code of conduct or standards by which to govern their actions."

Rehnquist found that while the Commandments have an undeniable religious message, their placement at the Texas Capitol was a "passive" display and not intended to proselytize.

"Similar acknowledgements can be seen throughout a visitor's tour of our nation's capital," Rehnquist wrote, pointing out that Moses sits high above the Supreme Court courtroom in a frieze that depicts early lawgivers.

"Our opinions, like our building, have recognized the role the Decalogue plays in American heritage," Rehnquist wrote.

Breyer, who voted to strike down the Kentucky monuments, wrote separately to uphold the Texas display, saying that he thought striking it down would "lead the law to exhibit a hostility toward religion." His vote gave Rehnquist's opinion enough support to win the day.

Stevens, O'Connor, Souter and Ginsburg dissented, saying the Commandments in the Texas context were expressly religious.

The conflicting rulings brought promises from both sides Monday to continue their advocacy.

Lynn, of Americans United for Separation of Church and State, said his group would challenge several other monuments. He thinks the court's ruling will make it more difficult to justify displays that were erected at the behest of religious conservatives wanting to assert a Christian message in government.

"The only people promoting the Commandments are promoting them for a religious purpose, so you can't say with a straight face that you're putting it up for another reason," Lynn said.

Matthew Staver, of the Liberty Counsel, which advocates for religious freedom and against abortion, said, "This battle is far from over." Staver argued at the Supreme Court to preserve the Kentucky displays.

Leland, of the Becket Fund for Religious Liberty, said this was an opportunity lost for the court.

"I was convinced they would make it a landmark day, and come up with a new test for these kinds of displays," Leland said. "Instead, what we'll have now is uncertainty and more litigation."

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(c) 2005, Knight Ridder/Tribune Information Services.

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