Rightly Decided

My initial impressions were right; I agree with the decisions in both the Texas and Kentucky Ten Commandments cases as they came down. In the Kentucky case, both Justice Souter's opinion for the majority (himself, O'Connor, Ginsburg, Breyer and Stevens) and Justice O'Connor's concurring opinion are instructive. I would pass along this from O'Connor's:

"Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation. ...

The purpose behind the counties' display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer. ... It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment. ... Nor can we accept the theory that Americans who do not accept the Commandments' validity are outside the First Amendment's protections. ... It is true that the Framers lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of religions for which the Nation would eventually provide a home. They surely could not have predicted new religions, some of them born in this country. But they did know that line-drawing between religions is an enterprise that, once begun, has no logical stopping point. They worried that 'the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects.' ... The Religion Clauses, as a result, protect adherents of all religions, as well as those who believe in no religion at all.

We owe our First Amendment to a generation with a profound commitment to religion and a profound commitment to religious liberty - visionaries who held their faith 'with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar'" (internal citations omitted).

Scalia's dissent in McCreary is biting, and in fact quite nasty. O'Connor's (perceived?) swipe at him in her final paragraph clearly made its mark.

In the Texas case, Justice Breyer's concurring opinion (he being the swing vote in this instance) is the notable one. He does not join the majority opinion written by Chief Justice Rehnquist, which seeks to draw too bright a line in the sand (and which I also would not agree with), but notes the "borderline" aspects of the case:

"If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment. ... That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the [Religion] Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court's prior tests provide useful guideposts - and might well lead to the same result the Court reaches today, ... no exact formula can dictate a resolution to such fact-intensive cases. ..."

Breyer goes on to make his argument that the Texas display "is distinguishable from instances where the Court has found Ten Commandments displays impermissible." He concludes his argument by saying "But, as I have said, in reaching the conclusion that the Texas display falls on the permissible side of the constitutional line, I rely less upon a literal application of any particular test than upon consideration of the basic purposes of the First Amendment's Religions Clauses themselves. This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.

... [T]o reach a contrary conclusion here, based primarily upon the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility to religion that has no place in our Establishment Clause tradition ..."

Breyer's opinion is a classic example of judicial pragmatism at its best, not to mention a genuine centrist argument. Examine the cases on their own merits, and decide that way, not based on any line drawn in the judicial sands.