Wednesday, March 02, 2005

Thou shalt issue a 5-4 ruling

Or maybe 6-3, depending on how Justices Anthony Kennedy and Sandra Day O'Connor vote. At any rate, the Supreme Court is hearing arguments today in a pair of legal challenges to Ten Commandments displays on public property, and the justices are likely to be deeply divided on the issue when they release their opinion sometime this summer.

The Texas case, in which a courthouse Ten Commandments monument stands alone and bears the words "I AM the LORD thy God," seems to be a pretty clear example of a government endorsement of religion, much like the granite sculpture that former Alabama Chief Justice Roy Moore rode to stardom last year. The Kentucky case presents a much more nuanced situation, since the Ten Commandments display there is posted alongside several other documents that played important roles in the development of American law. That display is analogous to the Supreme Court's own frieze, which includes images of Confucius, Hammurabi, Moses, and other famous lawgivers.

Intuitively, it would seem the Court would find that the Kentucky display is within constitutional limits while the Texas display crosses the line of church-state separation, but the justices have certainly been known to buck intuition before. Kennedy and O'Connor will almost assuredly be the tiebreaking votes, but regardless of which way they swing, something tells me this debate will remain far from over.


Blogger MissBossyPants said...

Two comments:

1. the 10 commandments don't apply to everyone. They were given to the Jews. The Seven Laws of Noah apply to everyone on earth, according to Torah. Not that I'm doubting the historicity of the 10 Commandments, but people misunderstand them.

2. Do people really believe that we'll forget about the 10 commandments, or that they'll disappear, if we don't display them at a courthouse? I don't go to the courthouse because I don't work there and I don't get summoned there. G-d has done a fine job of ensuring that someone knows about his 10 Commandments since the beginning, and I don't think he needs Roy Moore's help here.

That's all I have to say about that.

4:49 PM  
Blogger Alabamian said...

Based on today's oral arguments, during which Kennedy said the plaintiff in the Texas case was "asking religious people to surrender their beliefs," it seems likely that Kennedy will join the Court's three most conservative justices in voting to allow at least the Kentucky display and perhaps the Texas display as well.

I spoke this afternoon with a source who is familiar with the Court's inner workings -- yes, I do have inside sources from time to time -- and the source said that no matter which side the Court takes, O'Connor almost certainly will write the majority opinion if the vote is 5-4. But many justices today seemed skeptical of the challengers' assertions -- including, in an unexpected turn of events, Justice Stephen Breyer -- so, by themselves, the oral arguments indicate the Court may find the monuments constitutional.

Oral arguments can be deceptive, however, and I still expect a razor-thin margin, regardless of which way the vote goes.

8:30 PM  
Anonymous Anonymous said...

Do the motivations of the defendants make any difference in the case? I mean that since no one who advocates erecting huge stone Ten Commandments monuments is REALLY a legal history buff, how can they fall back on that defense? Is it feasible for the Supreme Court to question whether or not the defendant is really motivated by the motivations that they claim are motivating them? Can that influence their decision?

10:30 AM  
Blogger Alabamian said...

Pretty much anything the Supreme Court wants to let influence its decision can influence its decision. The opinion in Roper v. Simmons earlier this week was heavily influenced by scientific studies, international legal trends, and perceived public opinion. In fact, I suspect the outcome of this case will turn on whether the justices buy into the monument defenders' underlying motivation of defending public religious displays.

11:10 AM  

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