Texas Ten Commandments Case Pacifies Christians, Conservatives Say

By Jered Ede | July 7, 2008 | 8:31 PM EDT

(CNSNews.com) - Conservatives decried the 5-4 Texas decision Monday as yet another step towards the removal of religion from American life, despite the judgment upholding Texas' six-foot granite display of the Ten Commandments on the state Capitol.

Many groups are openly condemning the ruling as weak, as only three justices joined Rehnquist to form the judgment of the court, greatly reducing the case's precedent. The fifth vote came from Justice Steven Breyer, who crafted a concurring opinion.

The predominant division between Rehnquist's and Breyer's opinions is the age of the monument. Where Rehnquist defended the display based on the Establishment Clause and historical references to the Ten Commandments in America, Breyer defended the display primarily because it had stood on the Texas grounds for over 40 years without a problem.

"Where the Establishment Clause is at issue," Breyer writes, "we must 'distinguish between real threat and mere shadow.' Here, we have only the shadow."

Though the Texas ruling was generally seen as a positive reinforcement of governmental displays of the Ten Commandments, the weak precedent of the case was dismissed by some as harmful.

"This does not have the same precedent value as a full five-vote opinion of the court," Niel M. Richards, professor of constitutional law at Washington University School of Law, explained to Cybercast News Service.

"The [resulting] law is: the narrowest ground possible to sustain the judgment of the court," he said. That means lower courts are likely to uphold the common ground between Rehnquist's opinion and Breyer's opinion. According to Richards, the resulting precedent from the "splintered court" is unclear.

Indeed, the Southeastern Legal Foundation's executive director, Shannon Goessling claimed in a press release Monday that "the high court failed to fully address the 'how's and why's' of future displays of the Ten Commandments."

Although it provided supporters of the displays with something to celebrate, many are still critical of the court's rulings.

Billy McCormack, director of field activities for the Christian Coalition, told Cybercast News Service that Monday's rulings, including the Kentucky case, which ruled displays of the Ten Commandments in courthouses as unconstitutional, were an "incremental step towards the abolition of all Christian witness[ing] to the nation in the public square."

"The separation of church and state people have taken this to such an extreme, and they have the justices on their side now," McCormack said. The Texas case was like throwing a dog a bone, an act of appeasing Christians, he said. What is not yet known is whether the court's ruling will have any substance to it.

Dr. James Dobson, founder of Focus on the Family, explained in a press release that the Ten Commandments rulings are proof "that there is a religious witch-hunt underway, one which has infected virtually every level of our government." The rulings, he said, are "nothing less than historical revisionism."

Though the court adopted an Establishment Clause 'Lemon Test' in the 80s as the result of a series of similar cases, this test has proven useless, according to a conservative civil liberties organization, the Rutherford Institute.

The two rulings, which seemingly contradict each other, display "the utter lack of direction by the Court in terms of their Establishment Clause test," the Institute said in a press release. They called for the court to abandon the 'Lemon Test.'

The Kentucky ruling stands strong with a full 5-4 opinion of the court, overshadowing the brief thrill of victory felt by conservatives from the Texas opinion.

See Also:
Mixed Rulings on Ten Commandments (June 27, 2005)

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