Breyer casts decisive vote on religious displays

Emphasis on the past
In his opinion for the court in the Texas case, Chief Justice William Rehnquist said the justices must be two-faced when they decide cases involving religion.

“One face looks to the past in acknowledgment of our Nation’s heritage, while the other looks to the present in demanding a separation between church and state,” Rehnquist said. He said the court must “neither abdicate our responsibility to maintain a division between church and state nor evince hostility to religion by disabling the government from in some ways recognizing our religious heritage.”

As with Breyer, the emphasis in Rehnquist’s opinion was on the past — “acknowledgment of our Nation’s heritage.”

What Justice Antonin Scalia wanted — and could not get from most of his colleagues — was a robust statement that religion is not merely part of America’s heritage but a vibrant part of American society and government today.

Joining Scalia in Monday’s Ten Commandments decisions was Clarence Thomas.

In his view, when the Establishment Clause of the First Amendment says, “Congress shall make no law respecting an establishment of religion,” it means exactly that and nothing more than that. Congress “shall make no law,” but the states may do so, if they choose to.

“This case would be easy,” Thomas said, if the court would simply “return to the original meaning of the (Establishment) Clause.”

Thomas lamented that the court’s Texas ruling “leaves courts, governments, and believers and nonbelievers alike confused....”

Those looking for the court to settle once and for all the place that religious expression can have in American society will, of course, be disappointed by what Breyer came up with.

No finality from Breyer
But Breyer reminded Americans that judges decide specific cases on particular facts more often than they issue sweeping constitutional principles that resolve controversies for all time.

Supreme Court rulings On the final day of its 2004-2005 session, the Supreme Court: Issued split rulings on whether courthouses could display the Ten Commandments. Sent a file-sharing case back to lower court after ruling that the services could be sued for their users' illegal activity. Overturned a lower court ruling that would have required cable Internet firms to open their lines to rival Internet providers. Refused to hear appeals from two journalists who have refused to testify about the leak of an undercover CIA agent's identity. Ruled that an appeals court abused its discretion by reopening the case of a Tennessee death row inmate. Ruled that police cannot be sued for how they enforce restraining orders. Agreed to clarify when evidence collected during improper police searches can be used against a suspect. Said it would consider whether federal employees can sue in federal court for alleged constitutional violations.

If you want finality, you won’t get it, Breyer said. “The Court has found no single mechanical formula that can accurately draw the constitutional line in every case,” he said.

So Monday’s rulings are likely to spawn a new round of litigation as lower court judges try to figure out whether government officials in cities and towns across the nation intended to send “a predominantly secular message” with a Ten Commandments display, a high school graduation prayer or a Christmas-Chanukah-Santa Claus scene.

And in the end the decisions will be made not by legislatures, mayors and other elected officials, but by Breyer and whoever may sit on the court in the years ahead.

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