Posting Ten Commandments on Public Property Is Isn't Might Be Constitutional

Among other interesting rulings this month, the Supreme Court held Monday that displays of the Ten Commandments on public property are unconstitutional . . . except when they're not. In two cases, the Court approved an big stone rendering of the Commandments in a park surrounding the Texas state capitol, but rejected the posting of the commandments in Kentucky courtrooms. The unlikely swing vote in this confusing mess was Massachusetts' own Justice Stephen Breyer, who broke ranks with the left wing of the court (Ginsburg, Stevens, and Souter) and the surprisingly-liberal-on-this-issue Justice O'Connor to approve the Texas display. So what gives? Having read the decisions, Bostonist can only say, um, "We're not sure."

These cases arise because the first amendment to the Constitution says, "Congress shall make no law respecting an establishment of religion," which over time has come to mean that no governmental entity (not just Congress) can endorse one religion over others or favor religion over non-religion. You may recall, if you like old movies, that one of the Commandments orders, "You shall have no other god besides me." To Bostonist, this tends to suggest a favoring of one religion over others, and of religion over non-religion, but apparently, we are wrong. Breyer's concurrence in the Texas case emphasizes context, and suggests that an enormous Ten Commandments monument in a park tends to "convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a
historic relation between those standards and the law)." Here, Breyer says, the important context was the lack of sacred trappings or an environment conducive to meditation or prayer, and the presence of other monuments to Texas history. He adds that the monument was in place for 40 years without incident, proving that "few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor" religion. (Bostonist, cynic that we are, thinks this might suggest only that most people in Texas are Christian, but what do we know?)