Dispatches from the Creation Wars

Split Decision on Ten Commandments

I haven’t seen the actual rulings yet, but it appears that my prediction has come true – the Supreme Court has split on the two Ten Commandments cases, ruling against the Kentucky display in the McCreary case and upholding the Texas display in the Van Orden case. According to Lyle Denniston at the SCOTUSBlog, the McCreary case was a fairly predictable 5-4 decision with the court’s 4 more liberal justices joined by O’Connor to make up the majority and it was decided primarily on the purpose prong of the Lemon test:

Splitting 5-4 in the first of two rulings on government displays of the Ten Commandments, the Supreme Court on Monday upheld a federal court order against a display of the religious document on the wall of a courthouses in two Kentucky counties.

The Court, in an opinion by Justice David H. Souter, said the ruling does not mean that a sacred text can never be integrated into a governmental display on law and history. It found, however, that the displays in Kentucky were motivated by a religious purpose, which did not change as the display was modified twice during court challenges.

Without having read the actual decision, that is likely a relief to those of us who feared that the court may do away with the Lemon test completely, which would have had an enormous effect on pending court cases involving anti-evolution legislation. The Texas case is apparently quite a collection of disparate opinions:

Chief Justice Rehnquist announced the second decision on a religious display, finding no constitutional violation in the placement of a Ten Commandments monument on the grounds of the state capitol building in Austin, Texas. That decision was widely splintered. Announcing the votes of the various Justices, Rehnquist quipped — to widespread laughter — that he did not know there were so many Justices on the Court.

That one will certainly be interesting to read and analyze. Stay tuned for more details.

Update: The McCreary opinions are now available. Click here for Souter’s majority opinion, joined by Justices Breyer, Stevens and Ginsburg. Click here for Scalia’s dissenting opinion, joined by Thomas, Rehnquist and (in part) Kennedy. And click here for O’Connor’s concurring opinion.

Update #2: Here are the Van Orden opinions. Click here for the controlling opinion by Rehnquist, joined by Thomas, Scalia and Kennedy. Click here for Souter’s dissent, joined by Stevens and Ginsburg. Click here for O’Connor’s dissent. Click here for Stevens’ dissent, joined by Ginsburg. Click here for Breyer’s concurrence. Click here for Thomas’ concurrence. Click here for Scalia’s concurrence.


  1. #1 GeneralZod
    June 27, 2005

    OK, time for the religious right to declare a victory! (Texas) and also declare that they are being persecuted! (Kentucky)

  2. #2 Matthew
    June 27, 2005

    I’m pretty depressed that any of these would pass at all.

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