The Supreme court will rule on the constitutionality of Ten Commandments displays on public property (story from FOXNews). While this is not terribly unprecedented in and of itself (the Court has certainly agreed to hear arguments on divisive issues before), what is somewhat unprecedented is the fact that the Court already ruled on this issue in 1980.

The Supreme Court will hear two cases as one: Van Orden v. Perry and ACLU v. McCreary County [Kentucky]. Read the decision of the Fifth Circuit Court of Appeals in the case Van Orden v. Perry and the decision of the Sixth Circuit Court of Appeals in ACLU v. McCreary County.

The 1980 case is Stone v. Graham, 449 U.S. 39 (1980). In that case, the Court determined that "[a] Kentucky statute requiring the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public school classroom in the State has no secular legislative purpose, and therefore is unconstitutional as violating the Establishment Clause of the First Amendment."

The 1980 case was a 5-4 decision, with Chief Justice Burger and Justices Stewart, Blackmun, and Scalia dissenting. The majority emphasized that the Court had a three-part test for determining whether or not a state statute is permissible under the Establishment Clause: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally the statute must not foster 'an excessive government entanglement with religion'" [ellipses in original]. The Court found that Kentucky's statute did not have a secular legislative purpose; that it did advance religion ("The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths"); and it did foster an excessive government entanglement with religion.

Justice Rehnquist -- now the Chief Justice -- presented a convincing argument in his dissent:

The fact that the asserted secular purpose may overlap with what some may see as a religious objective does not render it unconstitutional. As this Court stated in McGowan v. Maryland, 366 U.S. 420, 445 (1961), in upholding the validity of Sunday closing laws, "the present purpose and effect of most of [these laws] is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the state from achieving its secular goals."

We close down stores on Sunday because the Bible says we must rest on the Sabbath, and yet that is allowed to be legal. Why not Saturday or Friday? Because this country was not founded by Jews or Muslims. Christians are in charge; therefore, their laws take precedence and, over time, become part of the secular law of the United States.

Then again, the conservative justices are the ones who shot down Newdow v. Elk Grove Unified School District on the prosaic grounds of standing. If "liberal" justices can be branded as "activist" for inventing new interpretations of the Constitution, then conservative justices can be branded as "inactivist" for not applying the Constitution in cases where it might undermine their own personal values. Our money stills proclaims that the official stance of the United States is to put its trust in God; our Pledge of Allegiance still subordinates the nation to God; even the state motto of Ohio suggests that, without God, nothing is possible. If these conservative justices are so gung ho about interpreting the Constitution to the letter, then why haven't they done what the Constitution says and removed God from the official, government sphere? The answer is that, like "activist" judges, they bring in a variety of extra-Constitutional texts to explain why it's okay to have the Pledge of Allegiance include God or why it's okay to have the Ten Commandments on display. Ususally the text is "culture," "history," "Western civilization," or something like that. In offering these excuses, the conservative justices are no better than "activist" judges at strict interpretation of the Constitution. They also have an agenda, one that is not supported by the Constitution, and as a result, they must resort to extra-Constitutional sources to back them up. "Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, said the city sought to reflect the cultural, historical and legal significance of the commandments. Rehnquist noted that justices' own chambers includes a carving of Moses holding the Ten Commandments," says the FOXNews article. Certainly Scalia -- who is a stickler for the letter of the law -- would be opposed to bringing in "history" and "culture" as support for the Ten Commandments. After all, he was opposed to bringing in contemporary extra-Constitutional support for Lawrence v. Texas in the form of current world trends and recent European law. What's the difference? In this case, the agenda. No justice can be entirely objective. Each side has a particular way of thinking that is inherently flawed: each side makes the facts conform to a theory (deductive reasoning) instead of making a theory that conforms to observed facts (inductive reasoning).

Will these statues remain intact? Hopefully not, as Scalia, Rehnquist, and Thomas are only three members of the nine-member Court. Hopefully the other six can see the error of their (Scalia, Rehnquist, and Thomas's) ways.