Analysis: Supreme Court Rules in Ten Commandments Cases
By Alan Reinach
By now, you’ve seen the press coverage of the Ten Commandments decisions from the Supreme Court, upholding a monument outside the Texas State Capital, and striking down an interior courthouse display in Kentucky. Permit me to add a few observations of my own.
- Justice O’Connor’s opinion in the Kentucky case is the clearest defense of religious freedom. She premised her rejection of both displays on the ground of protecting liberty of conscience for all Americans. I have copied her short opinion below. Even those who disagree with how she applied the principles may be able to appreciate the eloquent affirmation of these principles of religious freedom.
- Only one of the decisions had five votes, and that was the opinion of Justice Souter rejecting the Kentucky display. In this decision, the court reaffirmed the necessity of state action having a primarily secular purpose. The Court continued to maintain that states cannot act primarily to advance religion. The principle is eminently sound, even acknowledging that reasonable minds may disagree on its application to the facts of a given case, such as this one. The state may not act to advance or promote religion, as such, but only for secular reasons. This is fundamental.
- Chief Justice Rehnquist’s opinion in the Texas case struck me as unusually mild and reasonable. It does not appear to break any new legal ground, and was quite conciliatory. Since it did not receive five votes, the opinion does not become binding precedent. The outcome of the case does establish a precedent for similar outdoor monument displays.
- Justice Scalia’s decision is troubling. While many Americans are sympathetic to his conclusion that both displays are constitutional, we should be alarmed at his reasoning. Scalia essentially approves the tyranny of the majority in matters of religion. He approved the public display of the Ten Commandments on the ground that 97% of the American people adhere to Christianity, Judaism or Islam, religions that accept the Ten Commandments.
- Clearly, public opinion will not be assuaged by the “split the baby” approach that resulted. The right will continue to assault the court, and the divide will become fodder in the battle over future Supreme Court appointments.
- People are wondering about the Alabama situation, and Justice Roy Moore’s monument that was removed from the courthouse rotunda. That case is over, and would be difficult to reopen. In the event that Justice Moore could find a way to get a court to reconsider whether the monument should be restored to its position in the courthouse, my guess is that he would lose. The facts of that case are much more similar to the Kentucky display that was struck down. That was the easy case, much easier than the two the Supreme Court actually decided.
- The legal and political battles over posting of the Ten Commandments are a distraction from the real issue: God wants to write the law in our hearts. Who among our Christian friends is saying this? How ironic that after attacking the law of God for generations, insisting that it need not be kept, was nailed to the cross, etc., Protestants are now urging the public display, and on stone monuments or pictures of stone! Who are the true legalists?
We have produced a poster and a brochure, both entitled: “Written in the Heart” to get this message out. Liberty magazine produced a special issue on the Ten Commandments, including an article I wrote entitled: “The Bill of Freedoms” that will become the basis for an evangelistic website, www.WrittenInTheHeart.com. You can order the poster and brochure on our website, www.churchstate.org, or by calling 805-413-7396.
Conclusion: I’m happy with the outcome. I would have been far more troubled if both displays had been approved or disapproved. The disapproval would have provoked a much more severe reaction, while the approval would have signaled a dangerous acceptance of majoritarian dominance in matters of faith.