Shortly after 10:00 am this morning, the Court issued a disappointing decision banning some displays of the Ten Commandments in courthouses. Instead of offering a broad decision on the constitutionality of such displays, the Court opted for a narrow and rather arbitrary ruling that suggests similar displays will be judged on a case-by-case basis in the future. While ruling two courthouse displays from Kentucky to be illegal, the Court noted that its own display of the Ten Commandments was not illegal.
Roughly an hour later, the Court issued a second opinion upholding a six- foot granite display of the Ten Commandments on the grounds of the Texas state capitol. The critical issue in both cases appears to be the intent motivating the creation of the displays. The Court may be signaling a willingness to accept a purely historical, academic display, while rejecting any monument erected with a desire to promote religion.
These contradictory decisions actually decided little and seem guaranteed to keep the debate over the role of religion in the public square simmering for years to come.
What is clear, however, is that the Court continues to buy into the modern misinterpretation of Establishment clause. Writing for the 5-to-4 majority in the Kentucky case, Justice David Souter wrote, "When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment clause value of official religious neutrality." If I understand Justice Souter correctly, he seems to be suggesting that a display of the Ten Commandments may be constitutional so long as it is devoid of any religious significance.
When it came to faith in the public square, our Founding Fathers were anything but "neutral." They clearly intended for government to be guided by morality. What they did not want was an official state denomination, like the Anglican Church of England, suppressing other denominations. The Establishment clause was written to keep the state out of the church so that the faith might thrive. It was not written to keep faith out of the public square.
The people bringing these lawsuits against the Ten Commandments are grossly mistaken in their view that freedom of religion should mean "freedom from religion." Unfortunately, this view is increasingly embraced by our legal elites, with our robed justices becoming the high priests of secularism!
The American people, however, are not so conflicted as the Court. Recent polling indicates that three-quarters of the public supports displays of the Ten Commandments. When the courts are this confused (some judges don't even know what the meaning of "marriage" is anymore!) action is demanded from our elected representatives, and there is a lot they can do.
The executive and legislative branches are supposed to be "co-equal" branches of government. They are not powerless; the people's representatives were never intended to be submissive servants of the courts! The influence of the executive and the legislative branches over the judiciary begins with the appointment and confirmation process - the ability of the men and women you elect to nominate and confirm judges who share your values.
President Dwight Eisenhower was asked once about the greatest mistakes of his presidency. He responded, "Two of them are sitting up there on the Supreme Court." Today's majority opinion from Justice David Souter, once called a "home run for conservatives," is another stark reminder of why President Bush, if given the opportunity, must nominate strong conservatives for the Supreme Court; judges the president knows will not be part of these sorts of majorities.