Good News

Supreme Court bars Ten Com­mand­ments at courthouses
The deci­sion does­n’t go as far as I’d like, but it’s progress!

Tues­day, June 28, 2005; Post­ed: 5:40 p.m. EDT (21:40 GMT)

WASHINGTON (AP) — The Supreme Court strug­gled in a pair of 5–4 rul­ings Mon­day to define how much blend­ing of church and state is con­sti­tu­tion­al­ly per­mis­si­ble, allow­ing the Ten Com­mand­ments to be dis­played out­side the Texas state Capi­tol but not inside Ken­tucky courthouses.

In its first rul­ings on the issue in a quar­ter-cen­tu­ry, the high court said that dis­plays of the Ten Com­mand­ments on gov­ern­ment prop­er­ty are not inher­ent­ly uncon­sti­tu­tion­al. But each exhib­it demands scruti­ny to deter­mine whether it amounts to a gov­ern­men­tal pro­mo­tion of reli­gion, the court said in a case involv­ing Ken­tucky cour­t­house exhibits.

In effect, the court said it was tak­ing the posi­tion that issues of Ten Com­mand­ments dis­plays in cour­t­hous­es should be resolved on a case-by-case basis.

In the Ken­tucky rul­ing and a sec­ond deci­sion involv­ing the posi­tion­ing of a 6‑foot gran­ite mon­u­ment on the grounds of the Texas Capi­tol, Jus­tice San­dra Day O’Con­nor joined mem­bers of the lib­er­al bloc in argu­ing the dis­plays were uncon­sti­tu­tion­al. Stephen G. Brey­er, nor­mal­ly part of the more lib­er­al wing, joined them in the Ken­tucky case but vot­ed with the more con­ser­v­a­tive mem­bers to make a 5–4 major­i­ty in favor of the Texas display.

Jus­tice Antonin Scalia released a sting­ing dis­sent in the cour­t­house case, declar­ing, “What dis­tin­guish­es the rule of law from the dic­ta­tor­ship of a shift­ing Supreme Court major­i­ty is the absolute­ly indis­pens­able require­ment that judi­cial opin­ions be ground­ed in con­sis­tent­ly applied principle.”

The jus­tices vot­ing on the pre­vail­ing side in the Ken­tucky case left them­selves legal wig­gle room, say­ing that some dis­plays inside cour­t­hous­es would be per­mis­si­ble if they’re por­trayed neu­tral­ly in order to hon­or the nation’s legal history.

But framed copies in two Ken­tucky cour­t­hous­es went too far in endors­ing reli­gion, the court held. Those cour­t­house dis­plays are uncon­sti­tu­tion­al, the jus­tices said, because their reli­gious con­tent is overemphasized.

In con­trast, a 6‑foot-gran­ite mon­u­ment on the grounds of the Texas Capi­tol — one of 17 his­tor­i­cal dis­plays on the 22-acre lot — was deter­mined to be a legit­i­mate trib­ute to the nation’s legal and reli­gious history.

“Of course, the Ten Com­mand­ments are reli­gious — they were so viewed at their incep­tion and so remain. The mon­u­ment there­fore has reli­gious sig­nif­i­cance,” Chief Jus­tice William H. Rehn­quist wrote for the major­i­ty in the case involv­ing the dis­play out­side the state capi­tol of Texas.

“Sim­ply hav­ing reli­gious con­tent or pro­mot­ing a mes­sage con­sis­tent with a reli­gious doc­trine does not run afoul of the Estab­lish­ment clause,” he said.

Rehn­quist was joined in his opin­ion by Scalia, and jus­tices Antho­ny Kennedy and Clarence Thomas. Brey­er filed a sep­a­rate opin­ion con­cur­ring in the result.

The rul­ings were the court’s first major state­ment on the Ten Com­mand­ments since 1980, when jus­tices barred their dis­play in pub­lic schools. But the high court’s split ver­dict leaves some­what unset­tled the role of reli­gion in Amer­i­can soci­ety, a ques­tion that has become a flash point in U.S. politics.

“While the court cor­rect­ly rejects the chal­lenge to the Ten Com­mand­ments mon­u­ment on the Texas Capi­tol grounds, a more fun­da­men­tal rethink­ing of our Estab­lish­ment Clause jurispru­dence remains in order,” Thomas wrote in a sep­a­rate opinion.

Dis­sent­ing in the Texas case, Jus­tice John Paul Stevens argued the dis­play was an improp­er gov­ern­ment endorse­ment of reli­gion. Stevens not­ed in large let­ters the mon­u­ment pro­claims ‘I AM the LORD thy God.“ ‘

“The sole func­tion of the mon­u­ment on the grounds of Texas’ State Capi­tol is to dis­play the full text of one ver­sion of the Ten Com­mand­ments,” Stevens wrote.

“The mon­u­ment is not a work of art and does not refer to any event in the his­to­ry of the state,” Stevens wrote. “The mes­sage trans­mit­ted by Texas’ cho­sen dis­play is quite plain: This state endors­es the divine code of the Judeo-Chris­t­ian God.”

Jus­tices O’Con­nor, David H. Souter and Ruth Bad­er Gins­burg also dissented.

The Supreme Court end­ed its term Mon­day with no retire­ment announce­ments from any jus­tices. A retire­ment could come lat­er, how­ev­er, in a let­ter to the pres­i­dent or press release.

There has been spec­u­la­tion about whether Rehn­quist, 80, will step down. The chief jus­tice has thy­roid can­cer and uses tra­chea tube to help him breathe.

Oth­er cases
Also Mon­day, the Supreme Court reject­ed appeals from two jour­nal­ists who have refused to tes­ti­fy before a grand jury about the leak of an under­cov­er CIA offi­cer’s identity.

The cas­es asked the court to revis­it an issue that it last dealt with more than 30 years ago — whether reporters can be jailed or fined for refus­ing to iden­ti­fy their sources. (Full story)

The jus­tices’ inter­ven­tion had been sought by 34 states and many news groups, all argu­ing that con­fi­den­tial­i­ty is impor­tant in news gathering.

Time mag­a­zine’s Matthew Coop­er and The New York Times’ Judith Miller, who filed the appeals, face up to 18 months in jail for refus­ing to reveal sources as part of an inves­ti­ga­tion into who divulged the name of CIA offi­cer Valerie Plame.

In anoth­er rul­ing from the court, jus­tices ruled that Inter­net file-shar­ing ser­vices will be held respon­si­ble if they intend for their cus­tomers to use soft­ware pri­mar­i­ly to swap songs and movies illegally.

The court reject­ed warn­ings that law­suits will stunt growth of cool tech gad­gets such as the next iPod.

The unan­i­mous deci­sion sends the case back to low­er court, which had ruled in favor of file-shar­ing ser­vices Grokster Ltd. and Stream­Cast Net­works Inc. on the grounds that the com­pa­nies could­n’t be sued. The jus­tices said there was enough evi­dence of unlaw­ful intent for the case to go to trial.

File-shar­ing ser­vices should­n’t get a free pass on bad behav­ior, jus­tices said. (Full story)

The Supreme Court also Mon­day over­turned a rul­ing that required cable oper­a­tors to open up their high-speed Inter­net lines to rivals. (Full story)

The deci­sion is a big vic­to­ry for the Fed­er­al Com­mu­ni­ca­tions Com­mis­sion and major telecom­mu­ni­ca­tions com­pa­nies, includ­ing Char­ter Com­mu­ni­ca­tions, Time Warn­er Cable and SBC Communications.

On the los­ing side are small Inter­net ser­vice providers, includ­ing Earth­link, con­sumer rights groups, and a host of local governments.

At issue in the case, FCC v. Brand X, was whether cable oper­a­tors should be required under fed­er­al law to lease their cable lines to com­peti­tors, much the way local phone com­pa­nies were forced years ago to open up their lines to long-dis­tance phone companies.

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