Generally speaking, when the Supreme Court takes on an issue and issues its ruling, the legal controversy ends. Yesterday, however, the high court wrapped up two Ten Commandments cases with ten separate rulings, which I’m afraid will likely prompt more litigation, not less.
To summarize what we learned yesterday, officials cannot promote religion, but they can recognize religion’s role in history. Old Commandments displays are probably fine, newer displays are legally problematic. The context of the Decalogue displays is critically important, as is the intent of those unveiling the displays.
If this sounds a bit like a garbled mess that will allow confusion to linger, it’s because it is.
Even the religious right doesn’t quite know what to do. One the one hand we have groups like the Christian Coalition that insists yesterday’s rulings were “tyrannical” and would undermine religion. On the other, we have like-minded groups who interpreted the decisions as a green light for more state-sponsored religious displays.
Within hours of yesterday’s Supreme Court decision allowing a Ten Commandments monument on the grounds of the Texas Capitol, Christian groups announced a nationwide campaign to install similar displays in 100 cities and towns within a year.
“We see this as an historic opening, and we’re going to pursue it aggressively,” said the Rev. Patrick J. Mahoney, director of the Washington-based Christian Defense Coalition, which organized vigils outside the Florida hospice where Terri Schiavo died this year.
Although disappointed that the court ruled in a related case that two Kentucky counties could not hang framed versions of the Ten Commandments in their courthouses, Mahoney said the Texas decision was sufficient to “open up a whole new frontier” for preserving the United States’ “Christian heritage.”
Well, does it “open up a whole new frontier”? Unfortunately, it depends.
When these evangelical activists approach 100 cities over the next year, in the hopes of emulating the displays at the Texas Capitol, will they be legal? Yesterday’s rulings should be helpful, but aren’t. The Supreme Court said Texas’ display meet constitutional muster in part because the monuments are old, diverse, and there was little evidence of a motive to endorse a religious message.
When Rev. Mahoney and the Christian Defense Coalition start approaching mayors, emphasizing the need to preserve the nation’s “Christian heritage,” the group’s displays will be diverse, but they’ll also be new and backed by a theocratic motivation. Good enough? It’s hard to say — the justices didn’t tell us.
And legal ambiguities will necessarily prompt more litigation, not less.
“They’re saying they’ll make arbitrary, ad hoc determinations about these things,” said Jared Leland, legal counsel for the Becket Fund for Religious Liberty, an advocacy group. “They’re not relying on broad principle. It’s just an additional clouding of the water.”
Barry Lynn, the executive director of Americans United for Separation of Church and State, agreed that the court failed, even though his group pushed for a different outcome from the one Leland’s group sought.
“It’s very frustrating, and it will almost certainly lead to more lawsuits,” Lynn said. “They had a chance to say definitively that governments can’t own and operate religious symbols. That would have been a clean, simple line. I have no idea why they can’t bring themselves to do that.”
Neither do I.