In Some Legal Battles, a Draw Feels More Like a Win


There were three opinions in the Kentucky Ten Commandment case and six in the Texas case that were decided last week by the U.S. Supreme Court.

But the opinions of Justice Sandra Day O'Connor in the Kentucky case and Justice Stephen Breyer in the Texas case were the most interesting and consequential. For both justices, the violence in today's world brought about by the mixture of government and religion influenced their opinions.

"Reasonable minds," O'Connor wrote, "can disagree about how to apply the religion clauses in a given case. But the goal of the clauses is clear: to carry out the founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society."

And then she stated: "By enforcing the clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish.

"Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: 'Why would we trade a system that has served us so well for one that has served others so poorly?' "

O'Connor concluded that the placement of large, readily visible copies of the Ten Commandments in Kentucky courthouses, as well as the 6-foot-high monolith inscribed with the Ten Commandments situated among 21 historical markers and 17 monuments surrounding the State Capitol in Texas, violated the Establishment Clause.

And that would have been the court's decision in both cases, but for the fact that Breyer, who agreed with the principles she articulated and with her conclusion in the Kentucky cases, "disagree[d] with her evaluation of the evidence as it bears on the application of those principles" to the Texas case.

He was right, and both cases were properly decided.

In the Texas case, Breyer, while not joining in Chief Justice William Rehnquist's opinion, agreed with the chief justice's conclusion that "Moses was a law-giver, as well as a religious leader," that "the Ten Commandments have an undeniable historical meaning," and that the Texas monuments "representing the several strands of the state's political and legal history" do not violate the Establishment Clause.

But Breyer also focused on the case's potential for social conflicts. Citing Justice Arthur Goldberg's concurring opinion in the Bible-reading case (Schempp v. Abington Township), Breyer stated that "the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious. … Such absolutism is not only inconsistent with our national traditions … but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid."

As a brand-new lawyer in 1954, I chaired the Commission on Law and Social Action of the American Jewish Congress in Philadelphia. The members of the commission wanted to challenge the constitutionality of the recently adopted "under God" addition to the Pledge of Allegiance.

I disagreed, because in the McCarthy era, the case would likely have been lost, and because even if we had prevailed, the ensuing religious divisiveness would have made it a pyrrhic victory. In today's charged atmosphere – with a major political struggle over a Supreme Court nomination looming on the horizon – a victory for one side in both cases might have been equally pyrrhic. In some circumstances, there is much to be said for a draw.

In any event, after reviewing the "context of history and moral ideals" demonstrated by the 17 monuments of which the Ten Commandments monument (which had stood uncontested for nearly two generations) was but one, Breyer concluded that a decision of unconstitutionality, "based primarily upon the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions … and it could thereby create the very kind of religiously-based divisiveness that the Establishment Clause seeks to avoid."

Quoting Goldberg once more, he stated that "we must 'distinguish between real threat and mere shadow.' Here, we have only the shadow."

Theodore R. Mann, a Philadelphia lawyer, has represented plaintiffs before the Supreme Court in major religious-liberty cases.



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