A Ten Commandments monument on the grounds of the Texas Capitol is permissible under federal law, but those in two Kentucky courthouses violate the Establishment Clause of the Constitution, the Supreme Court ruled in two narrowly decided opinions June 27.

In one 5-4 ruling, the court said the 6-foot granite monument donated by the Order of Eagles amid a display of other monuments and historical markers on the Texas Capitol's 22-acre grounds is a passive structure that does not violate the Establishment Clause.

In a second 5-4 ruling released on the last day of the term, however, the court upheld injunctions barring Ten Commandments displays in Kentucky's McCreary and Pulaski county courthouses because there was a predominantly religious purpose behind their placement.

Writing for the majority in the Kentucky case, Justice David Souter upheld lower courts that found the counties' purpose in authorizing the displays in 1999 was religious, and that they were designed to be "an active symbol of religion (stating) 'the religious duties of believers.'"

Though after losing lawsuits the counties twice amended the displays to incorporate other texts of historic significance and adapted their statements of purpose, Souter said those changes were presented "only as a litigating position." He noted that earlier statements "were not repealed or otherwise repudiated."

"No reasonable observer could swallow the claim that the counties had cast off the objective so unmistakable in the earlier displays," Souter wrote. After describing elements of the amended county displays he found puzzling, such as the inclusion of a patriotic anthem but the omission of the 14th Amendment to the Constitution, on citizenship rights ("the most significant structural provision adopted since the original framing"), he concluded: "If the observer had not thrown up his hands, he would probably suspect that the counties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality."

The majority opinion said the counties' past actions do not taint all future efforts to somehow display the Ten Commandments.

"We hold only that purpose needs to be taken seriously under the Establishment Clause and needs to be understood in light of context; an implausible claim that government purpose has changed should not carry the day in a court of law any more than in a head with common sense," Souter wrote. "District courts are fully capable of adjusting (their injunctions) to take account of genuine changes in constitutionally significant conditions."

Justice Stephen Breyer provided the swing vote in creating a majority for both cases. In his concurring opinion, Breyer said the Texas display falls on the permissible side of the constitutional line because it serves a "mixed but primarily nonreligious purpose" and does not create an excessive government entanglement in religion.

"This display has stood apparently uncontested for nearly two generations," Breyer wrote. "That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one."

He said he understands "the danger of the slippery slope." But "where the Establishment Clause is at issue, we must 'distinguish between real threat and mere shadow.' Here we have only the shadow."

Although he agreed in the majority judgment that the monument does not violate the Constitution, Breyer drew the line at signing onto Chief Justice William Rehnquist's opinion defining why. Rehnquist's opinion noted that representations of the Ten Commandments are common throughout the country, including in the Supreme Court room itself. Images of the Ten Commandments are incorporated in the frieze on the room's walls and on the metal gates lining its north and south sides.

"These displays and recognitions of the Ten Commandments bespeak the rich American tradition of religious acknowledgements," Rehnquist wrote.

"Of course the Ten Commandments are religious," he continued. "They were so viewed at their inception and so remain. The monument, therefore, has religious significance."

But Moses, who presented the commandments to the Israelites, was "a lawgiver as well as a religious leader," Rehnquist said. "The Ten Commandments have an undeniable historical meaning.... Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause."

Joining Souter and Breyer in the majority in the Kentucky case, McCreary County vs. American Civil Liberties Union, were Justices John Paul Stevens, Sandra Day O'Connor and Ruth Bader Ginsburg.

In the Texas case, Van Orden vs. Perry, Rehnquist and Breyer were joined by Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Dissenting opinions in each case staked out firm areas of disagreement with the majorities.

Stevens, O'Connor and Souter wrote dissents in Van Orden vs. Perry. Ginsburg joined those filed by Stevens and Souter.

Scalia's dissent in McCreary County vs. ACLU was joined by Rehnquist and Thomas, and, in part, by Kennedy. Scalia also read much of his dissent from the bench, which the justices tend to do only in cases of strong disagreement with the majority.

---CNS