Three conservative justices dissented to the Tuesday denial, saying the monument in Elkhart, Ind., has as much "civic significance as it does religious." However, at least four justices must agree that a dispute merits Supreme Court attention before the court takes on a case for argument and an eventual decision.
Though a denial of review by the Supreme Court sets no precedent, it does leave in place the lower-court appeals court ruling, which holds sway in the 7th U.S. Circuit. The circuit includes Indiana, Illinois and Wisconsin. But its influence could be felt across the country as other courts thrash out similar disputes.
Chief Justice William Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, said the full court made a mistake in not taking on the case for argument.
"I would grant (review) to decide whether a monument which has stood for more than 40 years, and has a least as much civic significance as it does religious, must be physically removed from its place in front of the city's Municipal Building," Rehnquist said in his dissent.
Justice John Paul Stevens, who oversees the 7th U.S. Circuit and was one of the 6 justices refusing review, wrote a separate opinion criticizing Rehnquist's dissent, which he said "omits one extremely significant fact and discounts another."
Stevens said the dissent ignores the first lines on the monument, even though they appear in significantly larger letters: "The Ten Commandments -- I am the Lord thy God."
Stevens said the dissenters also give "short shrift" to the origins of the monument, and the fact that a priest, a minister and a rabbi officiated at its dedication.
Thousands of "Ten Commandments" monuments and plaques were erected across the United States both before and after the opening of the 1956 movie of the same name. The campaign was fostered by the film's producer and director, Cecil B. DeMille, who was a master of a type of popular entertainment that audiences of the era responded to with enthusiasm -- religiosity tempered by scantily clad dancing girls.
Many of the monuments were funded and presented by the Fraternal Order of Eagles, a civic organization engaged in humanitarian works in the United States and abroad.
On Memorial Day 1958, the people Elkhart celebrated with a parade down Main Street and the dedication of the stone monument on the 25-foot-wide lawn of the Municipal Building. The granite slab is 6 feet high and 3-1/2 feet wide.
The monument sat undisturbed on the Municipal Building lawn for four decades. Then in 1998, the American Civil Liberties Union told the city it would sue unless the religious monument was removed from public property. When the City Council refused, the ACLU went to court on behalf of two Elkhart residents.
One of the residents, William Books, said he first noticed the monument in 1990 "when he was 'driving real slow in a delivery truck,' " according to court records. He wrote a letter of complaint to the ACLU in 1997. The other resident, Michael Suetkamp, "states that he must come into direct contact with the monument in order to participate as a citizen of Elkhart."
Describing himself as "a voice from the back of the judicial bus," Sharp said he hoped his summary ruling for the city "will lead to a careful re-examination of precisely where we are going with our jurisprudence about religious messages and symbols on public property in the United States."
A federal appeals court panel reversed the judge 2-1.
The majority opinion cited the establishment clause of the First Amendment, which forbids the "establishment of religion, or (any law) prohibiting the free exercise thereof."
The majority cited Justice Sandra Day O'Connor, who warned of creating religious "ins" and "outs" in the population. The majority also pointed to "our ancestors who suffered significantly because of their religious beliefs and who were ostracized by their national communities or made to suffer poverty or even worse because of their religious beliefs. As one visitor to our shores, himself a refugee from Nazi tyranny put it, Americans can all say, 'We are bruised souls.' We each carry 'the wounds and sorrows of ancestors....'
The establishment clause acknowledges that 'spiritual patrimony' and requires that we exercise, in our governmental manifestations of the religious nature of our people, a self-restraint that will prevent anyone from becoming in the eyes of our governmental system -- an 'out' on the basis of religious beliefs."
Elkhart then asked the Supreme Court for review, which was denied Tuesday. Ironically, there is at least one, possibly two representations of the Ten Commandments in the Supreme Court itself. Both are part of the original art in the 1935 building, and may not be altered under federal law.
High on the frieze that surrounds the top of the courtroom, along a display of historic lawgivers, is a representation of Moses holding the Decalogue. Even more significantly, on a frieze above the head of Chief Justice Request, is a low-relief of two rectangular tablets, rounded at the top, with the Roman numerals I through X inscribed upon them. Supreme Court curators describe the tablets as a representation of the Bill of Rights. But they look suspiciously like something Charlton Heston might have carried back in the 1950s.