By Jan Crawford Greenburg,Chicago Tribune

WASHINGTON – A deeply divided Supreme Court declined Monday to order displays of the Ten Commandments off all government property, holding that even some large-scale monuments are permissible if they do not send a religious message.

In ordering the Ten Commandments removed from Kentucky courthouses but allowing them on the Texas Capitol grounds, the justices focused on the context of the displays and whether officials were improperly seeking to promote religion. But they were unable to draw clear lines: The cases produced 10 separate opinions, with the justices bitterly at odds.

The decisions in the two cases came on the final day of the term, as the justices took their seats one last time before adjourning for the summer.

In deciding the Ten Commandments cases, the court took on a highly contentious issue that has sparked hot debate throughout the United States. In Alabama, Supreme Court Justice Roy Moore was removed from office after he defied federal court orders to remove a 5,300-pound Ten Commandments monument from inside the Alabama Supreme Court building.

The justices Monday split the difference in the two cases, disappointing advocates on both sides. The court allowed an outdoor granite monument to remain in a park with other markers near the Texas capitol, but it rejected a display inside a Kentucky county courthouse as an unconstitutional establishment of religion. Both cases were decided 5-4.

Justice Stephen Breyer cast the key vote in allowing the Texas display, departing from liberal colleagues and Justice Sandra Day O’Connor to join with the court’s conservatives.

He declined to join the reasoning of Rehnquist’s opinion, however, writing a concurring opinion instead.

Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas joined Rehnquist’s plurality opinion, which said the Texas display was an appropriate illustration of America’s religious heritage.

Emphasizing that there is “no single mechanical formula” for evaluating such cases, Breyer wrote separately to stress the context and history of the six-foot high Texas monument. It stands with nearly 40 other monuments and markers designed to illustrate the “ideals” of Texans, including tributes to the Alamo, Confederate veterans and the Korean War.

“In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message about proper standards of social conduct,” Breyer wrote. “And in certain contexts, a display of the tablets can also convey a historical message about a historic relation between those standards and the law.”

The role of the Ten Commandments as a historic source of American law helps explain their display in dozens of courthouses throughout the nation, Breyer noted.

Most of those displays – including the Ten Commandments carved into the walls of the Supreme Court – apparently are not affected by the court’s decisions because they are exhibited along with other sources of American law.

Justice David Souter, who wrote the majority opinion striking down the Kentucky displays, said the court was not holding that the “sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history.”

But in this case, Souter wrote, the history of the displays showed county officials had sought to promote religion.

Those officials initially ordered the framed copies of the Ten Commandments displayed prominently, and alone. After legal challenges, the officials surrounded the displays with other documents, including the Magna Carta – but the official intent to favor religion was clear and tainted the display, the court said.

“The original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction,” Souter wrote. “When the government initiates an effort to place this statement alone in public view, a religious object is unmistakable.”

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The case produced a sharp dissent by Scalia, who took the unusual step of summarizing it from the bench. His voice strong and passionate, Scalia, who sits next to Souter on the bench, castigated the decision, which he said “ratchets up this court’s hostility to religion.”

Scalia’s dissent was personal in tone, recounting that on Sept. 11, 2001, he was in Rome for an international conference when terrorists attacked the United States. Upon hearing President Bush end his address to the nation with “God bless America,” a European judge said such religious expressions would be forbidden in his country.

In Europe, “religion is to be strictly excluded from the public forum,” Scalia wrote. “This is not, and never was, the model adopted by America.”

Emmet Flood, a Washington lawyer and legal expert, said the decision in the Kentucky case meant that unless the displays are predominantly secular, they won’t survive a challenge under the Constitution’s establishment clause.

“In the abstract, it’s not easy to say that the Ten Commandments is a predominantly secular symbol,” said Flood, who has been involved in previous religion cases before the court. “So the result today is going to make it more difficult for governments ever to justify placement of religious symbols in public settings.”

Activists on both sides criticized the court’s decisions Monday, saying the court failed to give much-needed clarity to state and local governments. The Supreme Court’s decisions in this area have always been somewhat murky, and lower courts often have struggled to make sense of them.

Monday’s decisions won’t help, analysts said.

“It doesn’t settle the question,” said Mark Perry, a Washington appellate lawyer who filed a brief for the Ethics and Public Policy Center, a conservative public policy research group. “Based on Justice Breyer’s opinion, it leaves it up to judgment of individual judges in individual cases, based on the purpose and context.”

Erwin Chemerinsky, a Duke University law professor, who argued that the Texas display sent a highly religious message, said the court had not dramatically changed the law. Some Ten Commandments displays will be permitted, he said, while others will not – and lower courts will have to decide.

“What the court is saying here is, context is everything,” Chemerinsky said. “But I don’t think these cases, because of how badly fragmented the court is, how many opinions there are, give much guidance to lower courts.”

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The Bush administration had urged the court to allow the displays in both cases, arguing that states could acknowledge religion and the nation’s religious heritage, as well as the secular significance of the Ten Commandments as a symbol and code of law.

“We respect the court’s decision,” White House spokesman Scott McClellan said Monday. “The court took a different view than we did in the Kentucky case, and we respect the court.”

O’Connor had been considered the key vote in the case. She sided with more liberal colleagues in arguing that both displays were unconstitutional. She wrote separately in the Kentucky case, arguing the displays in the courthouses conveyed “an unmistakable message of endorsement to the reasonable observer.”

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(Chicago Tribune intern Sam Singer in Washington contributed to this report.)

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(c) 2005, Chicago Tribune.

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AP-NY-06-27-05 2110EDT

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