Associated Press - Ten Commandments Decisions Leave Questions Unresolved on Church-State Law

June 29, 2005
By HOPE YEN, Associated Press Writer

Despite new Supreme Court actions on prayers, the Pledge of Allegiance and the Ten Commandments, the long-running legal battle over where religion ends and government begins shows no sign of stopping.

The Supreme Court's latest rulings failed to offer much clarity on the issue, leaving all sorts of sticky church-state disputes to be sorted out in lower courts.

Among them: whether "under God" should be included in the Pledge of Allegiance recited by schoolchildren, under precisely what conditions the Ten Commandments may be displayed on public land and whether religious words and symbols can be included in school murals.

The Supreme Court's pair of 5-4 rulings Monday amounted to a split verdict on the permissibility of Ten Commandments displays, striking down framed copies in two Kentucky courthouses but upholding a 6-foot granite monument on a 22-acre lot surrounding the Texas Capitol.

"The lesson to people wanting to promote religious symbols is to conceal what their purpose is," said Douglas Laycock, a church-state expert at the University of Texas law school. "For the other side, there also is some benefit because it limits how aggressively a state can endorse Christianity."

Justices said Ten Commandments exhibits would be upheld if their main purpose was to honor the nation's legal, rather than religious, traditions, and if they didn't promote one religious sect over another. How long an exhibit has stood as well as its location also will determine its constitutionality, and locations open to everyone are more acceptable settings than schoolhouses filled with young students, the court held.

"It is very encouraging that the Supreme Court understands the historical and legal significance of displaying the Ten Commandments," said Jay Sekulow, chief counsel of the American Center for Law and Justice, which supports greater public acknowledgment of religion.

"But in terms of impact on church-state law, the rulings are limited because they're so fact-specific. The one thing we'll probably have now is more psychoanalysis of individual legislators as to their purpose," Sekulow added.

Legal experts said Tuesday the rulings offer a few tidbits of general principles that could guide some pending church-state cases.

For example, thousands of monuments donated by the Fraternal Order of the Eagles in the 1960s that proclaim "I AM the LORD thy God" have a stronger chance in court because they all have the same text as the Texas monument. Courthouse displays, however, are questionable if lawmakers ever mentioned a religious purpose in erecting them.

In the Pledge case, challengers can point to strong language in Monday's rulings against religious symbols in schoolhouses, while supporters can take heart that the Pledge has been recited for decades with minimal controversy. That was a key factor cited by Justice Stephen G. Breyer in upholding the Texas display.

Last year, the Supreme Court heard arguments in the Pledge case but did not rule on merits because litigant Michael Newdow didn't have legal custody of his daughter. Newdow has since filed a new challenge in California with other parents who are in full custody of their children.

The court appeared to underscore some of the lines it drew Monday, letting stand Tuesday four lower court rulings that struck down Ten Commandments displays in schools and courtrooms in Kentucky and Ohio because they were overly religious.

A fifth appeal of a ruling that barred South Carolina town council from opening its meetings with a prayer invoking Jesus Christ also was rejected. The Richmond-based 4th U.S. Circuit Court of Appeals had found that it improperly favored one denomination.

Rev. Barry W. Lynn, executive director of Americans United for the Separation of Church and State, predicted many more lawsuits ahead as federal courts and partisans sort through all the implications of Monday's rulings.

"There's going to be a healthy amount of litigation," Lynn said. "I just wish justices had a clear, bright-line rule that says government buildings aren't churches. But unfortunately Mr. Breyer didn't go that far, so that's where we stand."