Breyer casts decisive vote on religious displays

"What do the two apparently contradictory decisions on displays of the Ten Commandments announced Monday by the Supreme Court mean for religious expression in America?

"In a nutshell, the effect of the court's two rulings was to say, 'Old religious displays are OK; new ones are not.'

"By the barest plurality, the court approved historical exhibits of the Ten Commandments on public property, displays that put the Decalogue in 'a museum-like setting,' as Texas attorney general Greg Abbott repeatedly described it when the court heard oral arguments in Van Orden v. Perry on March 2.

"Perhaps the best way to look at the cases is through the eyes of Justice Stephen Breyer, the swing vote in the Texas case, in which the court by a 5-4 vote allowed the state of Texas to continue displaying on the grounds of the state capitol in Austin a monument with the Ten Commandments engraved on it." ...

"A moral message is permissible, said Breyer, and a display of the Ten Commandments does send one.

"But in Breyer’s view—and he is the rule-maker by default because he was the deciding vote in this case—the Texas display 'conveys a predominantly secular message' and therefore is permissible."

"One important factor for Breyer: The Austin Ten Commandments monument was in a park with other historical monuments around it. 'The setting does not readily lend itself to meditation or any other religious activity,' Breyer decided.

"Hinting at practical political consequences, Breyer also worried that if the court banned long-standing displays of the Ten Commandments, it might spark public outrage, 'the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.'"

"In his opinion for the court in the Texas case, Chief Justice William Rehnquist said the justices must be two-faced when they decide cases involving religion.

"'One face looks to the past in acknowledgment of our Nation’s heritage, while the other looks to the present in demanding a separation between church and state,' Rehnquist said. He said the court must 'neither abdicate our responsibility to maintain a division between church and state nor evince hostility to religion by disabling the government from in some ways recognizing our religious heritage.'

"As with Breyer, the emphasis in Rehnquist’s opinion was on the past—'acknowledgment of our Nation’s heritage.'

"What Justice Antonin Scalia wanted—and could not get from most of his colleagues—was a robust statement that religion is not merely part of America’s heritage but a vibrant part of American society and government today."

"Justice Breyer's reasoning will further confuse communities that wish to display religious monuments with historical significance—or is that historic monuments with religious significance?" ...