As I predicted, the Supreme Court upheld the Texas display of the Ten Commandments, but struck down the display in Kentucky. I didn’t quite get the votes right, though – both cases were 5-4, with Justice Breyer the only one in both majorities. Here is a lineup of how the Justices voted:
Voting that both displays should be STRUCK DOWN:
Stevens, O’Connor, Souter, Ginsburg
Voting that both displays should be UPHELD:
Rehnquist, Kennedy, Scalia, Thomas
Voting that the Texas display was OK but the Kentucky display was not:
Breyer
Based on some of Justice Kennedy’s opinions in this area, especially Lee v. Weisman (a school prayer case), I had guessed that he would find at least the Kentucky display unconstitutional. I also guessed that Justice O’Connor would vote with Justice Breyer to split the difference. It’s an interesting lineup: O’Connor voted with the "liberals" in both cases; Kennedy with the "conservatives," and Breyer – rather than Kennedy or O’Connor, the usual "swing" Justices – decided both cases. Does this represent a sea change in the Court’s Establishment Clause lineup? We may know sooner rather than later – tomorrow the Court should tell us whether it will take up one or more of three significant Establishment Clause cases currently pending before it involving the Ten Commandments and school buildings. [UPDATE (6/28): Nope – the Court has denied review in all three cases. Apparently the Court has said all it intends to say on the Ten Commandments for now.]
One more thing: don’t be fooled by careless press reports that describe the results of these cases along the lines of "Supreme Court disallows Ten Commandments in courthouses." The results in these cases were dictated by their particular facts, which in both cases are somewhat unusual – the Texas monument is part of a large (several acre) outdoor monument garden, and the monument has been there unchallenged for 40 years, a fact that Justice Breyer placed some reliance on, while in the Kentucky case it is difficult to imagine a better set of facts in which to demonstrate religious motivation on the part of the officials putting up the display. The real, and perhaps unfortunate, lesson here is that these cases will continue to be decided in a fact-intensive, case-by-case way without resort to broad, overarching rules.
There’s more than you could possibly want to read about these cases here.
