Controversy over the proper boundaries between religion and state has been a long-standing battle at the Supreme Court, and that was evident again this week. The court ended its current term with a pair of deeply divided rulings about whether the government may publicly display the Ten Commandments. Their answer? "Yes" in a case from Texas, but "no" in a case from Kentucky. What do these decisions mean for the separation of church and state, and how do they fit with the views of the Founding Fathers? Tim O'Brien reports.
TIM O'BRIEN: How can it be that a small, framed version of the Ten Commandments in a county courthouse in Kentucky would violate separation of church and state and a six-foot monument on the state capitol grounds in Texas would not?
The court's decisions have been criticized by some as confusing and contradictory, but they may be explained by considering history and context, which in each case was strikingly different.
The Texas display was in a parklike setting amid 16 other monuments commemorating, for example, the Statue of Liberty and the state's pioneering women, yet it still possessed undeniable religious significance.In allowing it, Chief Justice William Rehnquist, writing for himself and three other justices, said the court should be guided by "the strong role played by religion and religious traditions throughout our nation's history." But Rehnquist's opinion did not command a majority on the court. Justice Stephen Breyer provided the critical fifth vote with a very narrow separate opinion, which limits the impact of the case.
Breyer said the deciding factor was that the monument had stood on the capitol grounds for 40 years without any legal challenge, and that "those 40 years suggest that few individuals are likely to have understood the monument as amounting to a government effort to favor a particular religious sect. Removing the commandments after all this time," said Breyer, "could create the very divisiveness the Establishment Clause seeks to avoid."
The court's ruling is hardly a green light to other states to erect similar monuments. Those that do not have the history or the context of the display in Texas are not likely to be allowed. That view is reinforced by the court's decision in the second case from Kentucky, involving the posting of the Ten Commandments in county courthouses.The court found that had a clearly religious purpose -- a fatal defect that could not be cured by adding other nonreligious displays, such as the Mayflower Compact or the lyrics of "The Star-Spangled Banner."
Justice David Souter, for a five-judge majority: "The framers intended to require government neutrality in matters of religion" and to prohibit the government not only from favoring one religion over others but also [from] any favoritism for religion in general.Justice Antonin Scalia wrote a passionate and blistering dissent, noting that Moses and the Ten Commandments appear on the frieze of the Supreme Court itself and that since its earliest days the court has begun its sessions with an invocation to God.
After cataloguing numerous examples of official government recognition of God, Scalia asks: "With all this reality (and much more) staring it in the face, how can the court possibly assert that 'the First Amendment mandates government neutrality between religion and nonreligion'? Who says so? Surely not the words of the Constitution."
Both Scalia and Souter resort to history to justify their completely opposite conclusions. How can the historical record produce such conflicting results? There is no dispute the framers of the Constitution thought religion was not only valuable but indispensable to good government.
Dr. JAMES BILLINGTON (Librarian of Congress): We have to remember that the Founding Fathers were doing something that had never been done before in history. They were inventing self-government, and for people to govern themselves, they felt they had to have civic virtue -- that they couldn't have virtue without a moral foundation to their lives and that morality never lasted very long, or held up very well, without religion.O'BRIEN: But the colonies were all over the map in what role government might play in promoting religion.
Dr. RICHARD BERNSTEIN (Adjunct Professor, New York Law School): Virginia goes first, and they try -- they mark out a route which we might call strict separation of church and state. And Massachusetts, on the other hand, writes a constitution with a declaration of rights that includes the provision [that] it shall be the right as well as the duty of all men to worship the Supreme Being.O'BRIEN: Michael McConnell is a law professor and federal appeals court judge who has written extensively on church-state issues.
MICHAEL MCCONNELL (Law Professor, University of Utah and Judge, U.S. Court of Appeals for the Tenth Circuit): Some degree of separation is certainly believed in. In fact, even the supporters of established churches believed that there should be some forms of separation.
O'BRIEN: In sharp contrast with today, McConnell says it was the most fervent evangelicals who demanded the strictest separation of church and state.
Judge MCCONNELL: Their principal concern was that establishment of religion led to government control over religion and would have the effect of dampening enthusiasm and actually discouraging religion.O'BRIEN: Thomas Jefferson was one of the strongest proponents of strict separation of church and state. Those words do not appear anywhere in the Constitution. But it was Jefferson who, in a letter to Baptists in Danbury, Connecticut, coined the metaphor of a wall separating church and state.
Dr. JAMES HUTSON (Historian and Chief, Manuscript Division, Library of Congress): We have a draft letter here at the Library of Congress and a couple -- three or four lines are very, very heavily inked out, and we asked the FBI if they would see if they could recover materials that had been blotted out.
O'BRIEN: Jefferson, along with Ben Franklin, another deist, had proposed this official seal for the United States: Israelites being chased through the Red Sea with the motto "Rebellion to tyrants is obedience to God." The proposal was rejected, and Jefferson joined forces with James Madison to defeat a Virginia tax assessment, similar to one enacted in Massachusetts, for the express purpose of supporting the church.
Dr. BERNSTEIN: Later on, when he's thinking about it as an old man and writing what historians call his "detached memoranda" -- these little notes that he made to himself to analyze key issues of constitutional government -- he said no, you shouldn't be using tax money to pay chaplains. That's a violation of the First Amendment.
O'BRIEN: So what to make of what the framers said, thought, and did? What does history tell us about how they might have viewed the government erecting a Ten Commandments monument on the Capitol grounds?
Dr. HUTSON: Oh, I think they would have had no trouble with that whatsoever. I think they would have been amused at anybody -- or incredulous that people would think this was covered by the Establishment Clause.
O'BRIEN: The departure of Justice Sandra O'Connor will now be critical. She's been a swing vote in religion cases and voted against displaying the Ten Commandments in both the Kentucky and Texas cases. On Capitol Hill, the stage is set for what could be a bruising confirmation battle over her successor.
Read more of Tim O'Brien's 
