By Tony Mauro
First Amendment Center legal correspondent
from firstamendmentcenter.org

WASHINGTON - There are only 10 commandments, but it took the Supreme Court 138 pages of opinion to decide whether displays of those commandments belong on public property. And in spite of the verbiage, it all boiled down to the views of one justice: Stephen Breyer.

The Supreme Court splintered yesterday on the issue in Van Orden v. Perry and McCreary County v. ACLU, virtually guaranteeing further litigation. The justices said a Ten Commandments monument on the Capitol grounds in Austin, Texas, could stay where it has been since 1961. But the Ten Commandments displays in two county courthouses in Kentucky, put up in 1999 with unabashed pro-Christian intent, had to come down.

How to reconcile the two decisions? At the strictly numerical level, the answer is Breyer. He was the only justice in the majority in both 5-4 cases.

But beyond that, Duke University law professor Erwin Chemerinsky put it best yesterday: “Context is everything.” Chemerinsky argued before the high court against the Texas monument, and lost. Chemerinsky was pleased to have won the vote of O-Connor, who has voted on both sides of the church’state divide, but sorry to have lost Breyer, the deciding vote.

Indeed, context was the driving force in the Court’s decisions, and nothing made that clearer than the color photographs that were included in the Court’s opinions in the Texas case (see page 31 of Van Orden). Breyer’s concurring opinion, upholding the Texas display, includes a panoramic photo of the Capitol grounds that shows the Ten Commandments monument as a sliver of granite that can barely be picked out among an assortment of other memorials and lampposts. But dissenting Justice John Paul Stevens, who said flatly that the message of the memorial is that “this state endorses the divine code of the Judeo-Christian code,” included a very different photo (see page 63 of Van Orden) in which the face of the memorial, etched with the words of the Ten Commandments, almost fills the frame, with none of its surroundings visible.

For Breyer, the wide-range photo demonstrated one part of the crucial context. “The physical setting of the monument,” he wrote, “suggests little or nothing of the sacred…. The setting does not readily lend itself to meditation or any other religious activity. But it does provide a context of history and moral ideals.”

read more at The First Amendment Center

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