Arizona’s monument to the Ten Commandments likely will remain near the state Capitol in Phoenix after the U.S. Supreme Court ruled Monday that a similar Texas display doesn’t endorse a religion.
In a 5-4 decision, the court said a display outside the Texas Capitol in Austin can stay because it’s part of a series of monuments reflecting state and national history.
But the sharply divided court went the other way Monday in a second case from Kentucky. Five justices ordered the removal of the Ten Commandments from inside two county courthouses, saying they violated the constitutional separation between church and state.
Monday’s split by the Supreme Court dismayed proponents and detractors of the Ten Commandments’ monuments. Both sides agreed the justices have created even more confusion about the proper role of religion in public arenas.
"There are so many cases that seemingly are decided on very arbitrary grounds if you examine them side by side and would almost seem to contradict each other," said Seth Apfel, deputy director of the Arizona chapter of the American Civil Liberties Union.
"That makes evaluating the constitutionality of any particular issue, according to the court, that much more difficult."
In 2003, the Arizona ACLU demanded the state remove a 6-foot monument to the Ten Commandments from Wesley Bolin Memorial Plaza. The state park just east of the Capitol has dozens of memorials to causes ranging from great battles and military units to early Arizona explorers and victims of crime.
Gov. Janet Napolitano refused to withdraw the 5,200-pound display, saying it serves more as a historical symbol than a religious monument. The ACLU decided to delay a lawsuit once the Supreme Court moved to hear the Texas case.
Both monuments were among dozens of memorials to Ten Commandments donated in the 1960s by the Fraternal Order of Eagles to help promote the Charlton Heston movie about the life of Moses.
The dispute over the Arizona monument created an unusual alliance between Napolitano, a Democrat, and state Republicans leaders who endorsed a legal brief filed by the Scottsdale-based Center for Arizona Policy. While the Supreme Court agreed with the conservative advocacy group’s position in the Texas case, a majority of justices refused to accept separate Judeo-Christian religious displays, as in the Kentucky case.
"There were high hopes the court could return to a position where, it’s basically the rational approach of, a religious display doesn’t make anyone recite a catechism or pray or bow down in front of it," said Peter Gentala, legal counsel for the Center for Arizona Policy. "Unfortunately, I think we what learned today is the only rule is that there’s going to be a lot of confusion for a long time to come."
For more than 60 years, the Supreme Court has struggled to define the meaning of the First Amendment’s prohibition on government establishment of religion.
The court has barred prayer led by local school officials, but has approved prayers by Congress and state legislatures.
The justices have banned some Christmas Nativity scenes on courthouse lawns, but have allowed the printing of the national motto, "In God We Trust," on U.S. coinage and currency.
The conflict reaches back, in part, to the earliest days of this country. The U.S. Constitution makes no reference to a deity, but the Founding Fathers frequently mentioned God in public speeches and in their roles as government leaders.
The message from the Supreme Court was further muddled Monday because of a variety of differing opinions written by the justices in the Texas and Kentucky cases.
But the line seems to be determined by whether the display was intended to promote a religious belief rather than simply having a connection to the Bible.
The majority in the Texas case focused on the monument’s location among a number of religious and nonreligious displays. The justices even point out their own court building includes a memorial to Moses.
In Kentucky, the two counties had posted the Ten Commandments to endorse their role in shaping Western notions of justice and law.
After the counties were sued, officials redesigned the display twice to include references to other documents including the Magna Carta, the Declaration of Independence and the Star Spangled Banner.