What about Consistency? Is that Constitutional?

The hope was that the Supreme Court would take these two Ten Commandments cases, one in Texas and one in Kentucky, and finally provide us with a clear understanding of what kind of display the Court deems constitutional and what kind the Court deems unconstitutional. That’s how it could have happened. Here’s what actually happened.

In two closely divided decisions, the Court flip-flopped on the issue. The only differences between the Texas display and the Kentucky display appear to be their prominence and their recency. The Kentucy display was posted prominently in a courtroom. It was a framed, paper document that had been installed in recent years. The Texas display is a large stone monument placed in a respectful location on the Capitol Grounds, but does not enjoy any more prominence than any of the other 38 monuments and markers on the Grounds. The Texas Monument was also installed 40 years ago. The purposes of both monuments are said to be the same: to honor the significance of religion in our culture, history, and law. The Court has decided that the Texas display is constitutional, and the Kentucky display is not. Our hopes for consistency from this Court are dashed.

Since we have spoken on the particular subject of the Texas display before, we shall examine the Court’s decision in that case. Chief Justice Rehnquist authored the Court’s opinion, stating that the Court should not, “abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage.”

The State should accommodate religion, but should not endorse it. It could be argued that the Constitution only prohibits the establishment of a state church. Even with government endorsement, religious freedom is not harmed as long as there is no government enforcement. And even then, according to Christianity Today , “the closer church and state get, the more the church looks like the state.” So, we theists have more to fear from a state church.

But it is our belief that “the Constitutions do not demand that the State of Texas remove the Ten Commandments monument. In fact, the Constitutions demand the opposite, that the State allow such a display,” and the Court agrees. Chief Justice Rehnquist quotes Zorach v. Clauson:

When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. . . . [W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. (emphasis mine)

So, the government must walk the not-so-fine line between state accommodation and state enforcement, between religious freedom and religious hostility. The Texas Ten Commandments monument is a far cry from state-sponsored religion and is therefore constitutional.

As for Kentucky, I guess if they had carved the Commandments in stone and placed them in the courthouse 40 years ago, they would have won over Justice Breyer.

The Court’s opinion and the dissenting opinions can be read here.

–J.E. Heath
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