The U.S. Supreme Court’s two decisions on displaying the Ten Commandments on government property could be seen as biblical. Remember the story of King Solomon, confronted by two women claiming to be the mother of the same baby? King Solomon said he would cut the baby in half, and when one woman objected, Solomon knew that was the real mother.
On Monday, you might say, the Supreme Court went ahead and cut the baby in half. In two 5-4 decisions, the court said a 6-foot granite monument on the grounds of the Texas Capitol was constitutional, but framed copies of the commandments in two Kentucky courtrooms were not.
Actually, if you buy modern jurisprudence on the establishment of religion, context matters, and there were reasons to differentiate between the two cases.
The First Amendment says “Congress shall make no law respecting an establishment of religion.” Putting the Ten Commandments — or sayings of Buddha or verses from the Quran — on government property does not necessarily establish a church in the sense the founders understood it. England had an established church, supported by taxes, of which the monarch was formally the head. The founders didn’t want that.
More recent jurisprudence, however, has focused on making sure the government doesn’t endorse or support any particular religion. While this is not the same as establishing a church, one can understand concern. But deciding whether an action supports religion or merely acknowledges its historic importance is a matter for prudence rather than principle.
The court distinguished between the Texas case — in which the monument was one of 17 historical displays — and Kentucky, where a couple of judges put up the Ten Commandments, and only after objections put up other items like the Bill of Rights. In Texas, the monuments celebrating various events had been up since 1961 without evoking controversy until recently, while in Kentucky, the court decided, the intention was religious from the outset, and adding other documents was a “sham,” as the 6th Circuit put it. So the Texas case was a valid acknowledgment of the historic importance of the commandments, while in Kentucky the judges were advocating religion.
Unfortunately, there’s no clear principle to determine where the borders are, so these decisions will invite future litigation.