Commandments Display Upheld

WASHINGTON -- A fractured United States Supreme Court on Monday, struggling to define a constitutional framework for the government display of religious symbols, upheld a six-foot-high Ten Commandments monument on the grounds of the Texas Capitol while ruling that framed copies of the Commandments on the walls of two Kentucky courthouses were unconstitutional.

The decisions in the two separate cases came on the final day of the court's 2004-05 term, a term shadowed by Chief Justice William Rehnquist's illness and speculation about his retirement.

But if the 80-year-old chief justice, who has been battling thyroid cancer, has such plans, he gave no indication of them as he presided over the hourlong proceedings. He even joked at one point, observing after he described the complicated voting pattern in the Texas Ten Commandments case that "I didn't know we had that many people on our court."

The vote in each Ten Commandments case was 5 to 4, with both majorities emphasizing, to varying degrees, the significance of the particular context in which the Commandments were displayed. The question was whether either display violated the First Amendment's prohibition against an official "establishment" of religion.

To the extent that the decisions provided guidelines for the further cases that are all but certain to follow, it appeared to be that religious symbols that have been on display for many years, with little controversy, are likely to be upheld, while newer displays intended to advance a modern religious agenda will be met with suspicion and disfavor from the court.

Only Justice Stephen Breyer agreed with both decisions, a development that appears to give him the balance of power in a contentious area of the court's docket that has been controlled most often in the past by Justice Sandra Day O'Connor.

For her part, O'Connor voted in each case with the group that found the displays unconstitutional, a surprising development given her past voting record. She explained herself in a concurring opinion in the Kentucky case, McCreary County vs. American Civil Liberties Union, which was decided with a majority opinion by Justice David Souter.

"It is true that many Americans find the Commandments in accord with their personal beliefs," O'Connor said in her concurring opinion. "But we do not count heads before enforcing the First Amendment."

O'Connor said the country had worked well, when compared with nations gripped by religious violence, by keeping religion "a matter for the individual conscience, not for the prosecutor or bureaucrat."

She added: "Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"

The two cases produced a total of 10 opinions, totaling 136 pages. Outside the court, the split decisions enabled each side in the larger debate over the role of religion in the public square to claim a measure of victory. It may take further litigation, not in these particular cases but in others that raise related questions, before the import of the decisions becomes clear.