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June 27, 2005
Court Punts on Ten Commandments

SCOTUSblog has analysis of the Ten Commandments ruling, but it looks like the Court punted.

A seemingly critical sentence (to a layperson) in the majority opinion, written by the Chief Justice, in the Van Orden case:

"Of course, the Ten Commandments are religious - they were so viewed at their inception and so remain. The monument therefore has religious significance," Chief Justice William H. Rehnquist wrote for the majority in the case involving the display outside the state capitol of Texas.

"Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause," he said.

In the McCreary County case, though, the Court went the other way. Scalia's dissent, as usual, contains remarks scathing only in their unveiling of uncomfortable hypocrisy:

"What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle."

Read both opinions (links above) for the interesting historical context of the centuries-long Establishment Clause debate that certainly won't make any MSM news coverage.

Posted by Jonathan R. on June 27, 2005 12:04 PM

Comments

I haven't read the opinions so I cannot comment on the distinctions made in the two cases. Clearly, one was in the court house and one was on the state capitol grounds, but there may have been more. What I find most interesting is that in the KY case, it was O'Connor who deviated and sides with the liberal wing of the court. Yet in the Texas case, it was Breyer that gave the court the majority, and not O'Connor.

Posted by: SBulka [TypeKey Profile Page] at June 27, 2005 12:31 PM

I find this a little mind-boggling.

Considering the rule of law is based largely on the Ten Commandments. (Murder, Stealing, Coveting, etc...) to exclude them from a court seems counter to what I would have expected. If you were going to publically display them anywhere, a court would be the place, I would think.

Maybe someone who knows more can shed some light on this for me.

Posted by: Chris at June 27, 2005 01:23 PM

Does this mean that judge from Mississippi gets his job back? (I think this ruling exonerates him)

Posted by: Troll [TypeKey Profile Page] at June 27, 2005 01:59 PM

OK... as soon as I typed that I had the feeling it was Alabama. It was and the guy's name was Roy Moore.

Posted by: Troll [TypeKey Profile Page] at June 27, 2005 02:02 PM

For additional context, see also Rehnquist's dissent in Wallace v. Jaffree, 472 U.S. 38 (1985). Major kudos to GOPbloggers for not duplicating the mistake commonly being touted around the web (presumably by those - including CNN - too lazy to read the Court's opinions) that O'Connor was the swing vote, rather than Breyer.

Overlooked in all the hullaballoo over Perry and McCreary County, the Court also ruled unanimously - at least, as I read it - that the authors and distributors of P2P software who orient their software substantially or exclusively towards the infringement of copyrighted material, and who take no steps to prevent such abuse, are liable to be sued for copyright infractions committed by users of that software. See SCOTUSblog for more discussion.

Posted by: Simon [TypeKey Profile Page] at June 27, 2005 03:42 PM