In one case, the Supreme Court decided 5-4 that displays of the Ten Commandments in two Kentucky county courthouses had violated the First Amendment's establishment clause. In the other, the Supreme Court decided that a granite monument displaying the Ten Commandments on the grounds of the Texas state Capitol did not violate the establishment clause. So confusing were the two decisions that some news outlets assumed that the differing conclusions must have something to do with the location of the displays. Some early news reports incorrectly indicated that the Decalogue was forbidden inside a government building but was OK on the grounds outside. In fact, the distinction the Court made was far murkier, relying on individual justices' interpretations of the intentions of those who placed the Ten Commandments on government property and, even, how long they had been on display. Oddly, those justices hostile to religious displays in general seemed to favor those that had been on government property a longer time.
Justice Antonin Scalia summed up the confusion perfectly: "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. That is what prevents judges from ruling now this way, now that -- thumbs up or thumbs down -- as their preferences dictate. Today's opinion … admits that it does not rest upon consistently applied principle … sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not." If the majority of justices continue down this unprincipled path, they will surely need the divine intervention they invoke each session when they implore "God save the United States and this Honorable Court."
Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .
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